(AUP - ICAS Publications) Euis Nurlaelawati - Modernization, Tradition and Identity_ The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts-Amsterdam University Press (2010)

100 modernization, tradition and identity is addicted to drugs, gambling, alcohol or the like. Furthermore, the kompilasi rules that the dissolution of a marriage requires equal division of the joint estate. Should the marriage end in divorce, women have the same rights as men to the estate which they acquired through their joint efforts during their marriage with a half-share for each. Likewise, when the marriage ends in the death of one of the parties, the surviving party has the right to half the estate, and the other half constitutes the inheritance of the deceased.12 The issue of joint property has never been dealt with in the classical fiqh doctrines. However, a number of Muslim scholars have concluded that the Islamic legal bases for the dispersal of joint property can be found in the discussion of shirka (cooperation).13 Admittedly there is no mention that shirka can exist between a husband and a wife in a marriage. In fact, the discussion of shirka is not included in the chapter on marriage (bb al-nik), but in the chapter on trade (bb al-buyū‘). Shirka literally means cooperation or a contract between two or more persons or institutions. As an institution which involves two parties, shirka is considered a legal form of business in so far as either of the parties does not violate or deviate from the terms of the agreement. The majority of Muslim jurists agree that there are two forms of shirka: cooperation in ownership (shirkat al-amlk) and cooperation in contract (shirkat al-‘uqūd). Joint property can be categorized as cooperation in ownership. Basically, the cooperation in ownership is different from the institution of the joint property, as cooperation of ownership is business-oriented, while the institution of joint property tends to be a social contract and can be disassociated from the marriage contract. However, as some principles, such as the rights and the duties of both parties engaged in the co-operation of ownership tend in the same direction as those pertaining to the institution of joint property, both husband and wife have the same duty to protect and the same right to spend the joint property. The institution of the joint property can be claimed to be cooperation of ownership in the marriage.14 Indeed, a marriage is a contract between a husband and a wife. When the contract or transaction of marriage is concluded, the cooperation or reciprocity between the two parties automatically commences, including cooperation in acquiring property. In this sense, a wife does not have to directly involve herself in earning money to have the right to the joint property. On the assumption that the wife has been considered to be cooperative by taking care of the household and child or children, when the husband goes out to work, this absolves her of the duty to go out to work.15 Some Muslim scholars have argued that without having to make an agreement as soon as the marriage is concluded, the property acquired during a marriage automatically becomes joint property of the husband and the wife. This is strengthened by the fact that in Indonesia,

debates on the kompilasi hukum islam 101 as has been discussed before, women (wives) have been accustomed to work to earn their own living, which makes their involvement in creating property during their marriages unequivocally evident. Following this line of reasoning, and the fact that for a very long time Indonesian people have been attached to adat, in the kompilasi it was felt necessary to include the institution of joint property in the Islamic legal system. Besides the rules regarding the representation of heirs, obligatory bequests, and joint property, the kompilasi introduces another novel rule which treats the inheritance rights of a father. Though it is not explicitly related to the local norms, the rule establishes the local familial system, namely a bilateral system. Article 177 rules that the father takes a onethird share if the deceased left no children, and if the deceased left children, he receives one-sixth. The provision that the father takes a onesixth share when the deceased has children is taken directly from the Qur’n IV: 11. However, the granting of one-third to the father when the deceased did not leave children is grounded neither in the Qur’n nor traditional fiqh doctrine. According to the traditional Islamic system of inheritance, the father is granted the remainder of the estate as ‘aaba. 16 It is recognized that by granting the father one-third, the drafters of the kompilasi initially intended to make the rules of inheritance fully bilateral, equalizing the position of all male and female relatives. They argued that under the same conditions, the mother takes one-third of the estate of the deceased. Although the drafters had an explanation for their decision, the rules generated some criticism. When the document of the kompilasi was ratified in 1991, the Nahdlatul Ulama (NU) protested and requested the provision be changed. The largest Muslim organization in Indonesia even went as far as to announce that it would reject the kompilasi entirely unless the rule was amended.17 In response to the protest, in 1994 the Supreme Court, after consulting the Ministry of Religious Affairs, issued a circular letter stating that the intent of the provision was for the father to take a one-third share of the estate when the deceased left no children, but did leave a husband and a mother. In other words, the rule means that the father takes onethird if he inherits together with only the husband and mother of the deceased.18 After the wave of protest this elicited and the response of the Supreme Court to the issue, confusion and obfuscation about the application of the inheritance rule to the father emerged among Muslims, ironically. Issuing such a clarification – while taking cognizance of only one circumstance, namely associating the father only with a husband and a mother, which denotes that the deceased is a female (wife) – the Supreme Court failed to clarify the provision and hence did not quell the debate, given the fixed consideration that the father may share the estate with other heirs, such as the mother and the wife – should the deceased be a male (husband).

102 modernization, tradition and identity Accordingly, although at the time the clarification was issued, the NU understanding that in such a case the residue of the estate would be onethird, – after the husband has taken one-half of the estate and the mother has claimed her one-third of another half or of the remainder, or one-sixth – accepted the explanation of the Supreme Court, the criticism and protest still raged among Muslims. Ichtiyanto, a former director of the Islamic Justice at the Ministry of Religious Affairs, repeatedly expressed his repudiation of the provision, urging that under such conditions the father should be granted a residual part of the estate. Although he realized that the residue of the estate to be granted to the father would be equal to one-third if the other heirs were a husband and a mother, he asserted that it is not equal to one-third but more; namely, one-half,19 if the other heirs are a mother and a wife, instead of a husband. By this demonstration he indubitably showed that the provision is confusing and must be modified.20 It can be inferred that, although its formula was not changed and still remains written as it stands in the kompilasi, the initially intended one-third rule is not applied as it was formally qualified in more detail in the circular clarification. This means that the kompilasi failed to introduce a new rule and has remained consistent to the traditional doctrine. I.2 State Policy I.2.1 Marriage According to the classical doctrine of Islamic law, marriage is concluded by offering and accepting in the presence of witnesses. Two Muslim males or one male and two females are required to witness the contract of marriage.21 There is no need for a contract of marriage to be registered. Nowadays, some Muslim countries have realized that a contract of marriage needs to be registered in order that records may be kept. Therefore laws have been passed to regulate the registration of marriage. However, the principles taken to make the rule effective are different. In Pakistan, for example, the State has passed a regulation stating that a failure to obey the law makes both the parties involved in the contract legally liable to imprisonment or a fine.22 In Singapore, a penal sanction is also applied to those who do not register their marriages.23 In contrast, in Morocco, which also demands the registration of marriage as an administrative requirement, as do both Pakistan and Singapore, and even makes the signature of two professional witnesses (‘udl) one of the conditions of the validity of marriage,24 does not impose a sanction on those who disobey the rule.25

debates on the kompilasi hukum islam 103 In this case, Indonesia is also no exception. The kompilasi states that a marriage should be concluded in the presence of an official marriage registrar or must be registered. Failure to register a marriage affects the validity of marriage, and judicial relief is denied in the case of an unregistered marriage. This means that the kompilasi allows no room for an unregistered marriage. However, it does differentiate between the religious validity and the State legality of marriage and therefore does not deem a marriage religiously invalid if the parties concerned fail to register their marriage.26 It seems clear that the kompilasi is anxious not to deviate from the classical doctrine of marriage. This is different from the case of Iran, which adopts the Shi‘te legal school, where registration is obligatory and failure to do so invalidates a marriage in terms of religion.27 The kompilasi has applied the concept of “dual validity” so as to preserve the point of view of classical Muslim scholars, that only religious requirements can decide whether or not a contract of marriage is valid; therefore the registration of marriage cannot be considered the main factors in deciding the religious validity of marriage, only as an administrative requirement.28 Indeed this concept emerges as the result of the compromise between the traditionalists and modernists, and inevitably still fuels debates among Muslim scholars in Indonesia. Positioning the registration as a purely administrative affair, the kompilasi does not rule on the sanction for those failing to comply with it. The 1975 regulation elucidating the application of the Marriage Law does mention the sanction, but it is applied only to the registrars. It states that should a registrar fail to register a marriage, he will be fined 7,500 rupiahs. It tends to be rather hazy on specifying under what conditions the failure of the registrar will be condemned to pay the fine. As I shall discuss later, though this law is still in force, many marriages in Indonesia are still not registered. Alongside insisting on the obligation to register, the State also intervenes in the matter at what age a boy or a girl can enter into married life. Marriage may not be concluded before the age of consent which for women has been fixed at sixteen and for men at nineteen. Girls and boys who seek to marry before the age of puberty must obtain the court’s permission. In addition, the State laws also decree that women and men who seek to marry after the age of puberty, but before the age of legal majority which has been fixed at twenty-one, must obtain their father’s permission.29 I.2.2 Polygyny and Divorce Keeping pace with the growing demand for gender equality, the kompilasi has also striven to heed women interests, paying special attention to

104 modernization, tradition and identity the issues of polygyny and divorce, which are still hotly debated by Muslims.30 This specific attention ties in with the State agenda to empower women in accordance with the program of economic development. Muslim modernists tend to view it as a conditional act. They argue polygyny is tolerated only on the grounds of necessity, for example, for the protection of widows and orphans after a war, which is exactly what had happened in the time of the Prophet. The stipulation which is laid down in the Qur’n insisting that all wives should be treated equally seems to stress that polygyny is basically discouraged, as it is believed to be difficult for a man to fulfill such a demand. In this context it is stressed that Muhammad was married to a number of women, as an example of his self-sacrifice and self-denial, instead of his seeking of enjoyment and pleasure.31 Bearing this proviso in mind, in order to avoid the abuse of polygyny, polygynous marriages are permitted only if the permission of the court has been obtained. This permission is made dependent on such requirements as the consent of the previous wife. By including this restrictive condition, the modernists consider the Qur’nic standard of “equal justice” no longer a matter for the moral conscience of the individual, but rather a legal matter to be decided by the court. This is contested by conservative Muslims, who assert that polygyny is a husband’s absolute right and that he is legally free to exercise it, provided he follows the limit of the maximum number of wives at any one time. Consequently they regard polygyny not a matter to be resorted to only in times of dire necessity. Their view is that the practice of polygyny is better than the practice of having unlawful mistresses and girlfriends.32 In various Muslim countries, ideas with intent to reform have been introduced to restrict the practice of polygyny or even abolish it altogether.33 Syria, Iraq and Morocco, for instance, have introduced some restrictions. In Syria, a man is permitted to practice polygyny if the court is satisfied that he is financially able to maintain multiple wives properly. In Iran, besides requiring that a man be financially capable of supporting polygyny, he must guarantee that he can treat the co-wives with equal justice. Even when these requirements are fulfilled, the polygynous marriage cannot be entered into unless the present wife consents to the marriage or has been sentenced to imprisonment, is addicted to drink, drugs or gambling, has disappeared, is certified insane, or is afflicted with incurable disease. Iraq stipulates that a man who wants to embark on polygyny must treat the co-wives equally.34 In Tunisia, the practice of polygyny is completely prohibited.35 In the Indian sub-continent, Muslim modernists have argued that the ideal marriage in Islam is monogamy. It is true that before the partition of India and Pakistan, polygyny was a common practice among Muslims. However, in Pakistan, polyg

debates on the kompilasi hukum islam 105 yny has recently decreased in the wake of some restrictions placed upon its practice by the Muslim Family Law Ordinance (MFLO).36 In Indonesia, the issue of polygyny has attracted considerable attention from women activists for a very long time. Some efforts had been made to fight to have it prohibited or, failing that, at least to restrict its arbitrary practice. Various seminars on this issue had been held by Muslim Women’s Organizations.37 These protracted struggles only gained a positive response from the Government in the 1970s. With the ratification of the 1974 Marriage Law, the Indonesian Government did place boundaries on the practice of polygyny by putting a number of conditions on the legal conclusion of a polygynous marriage. Permission for such a marriage has to be obtained from the religious courts, and this is the one crucial condition for a husband to have more than one wife, if both the parties concerned wish to do so (Art. 3 (2)). A husband can enter into a polygynous marriage only on the grounds that his wife is unable to perform her duties as a wife, or because she is suffering from some physical defect or incurable disease, or she is unable to bear descendants (Art. 4). Furthermore, it stipulates that the marriage can be conducted if the wife of a husband wishing to resort to polygyny consents, and the husband is financially capable of maintaining co-wives and their descendants. In addition, he has to be prepared to treat the co-wives equally (Art. 5). All these regulations were adopted into the kompilasi of Articles 56, 57, and 58.38 These Articles insist that the polygynous marriage can be solemnized only if these all conditions are fulfilled, and if one of the stated reasons exists. Failure to fulfill the requirements collectively incurs the prohibition of its practice. Above all, the approval of the court is absolutely essential and this means that the polygynous marriage can only be legally recognized if it is approved in the court. Like polygyny, divorce is now also restricted in Indonesia. In classical Islamic legal doctrines, divorce is a man’s absolute right. No intervention could be made in his exclusive right. Therefore it follows that the approval of a court is not needed. The man can exercise this right without having to provide any reason. Before 1974, divorce could be unilaterally effective when a husband uttered the formula of divorce. He was only required to come to KUA to finalize and register it. Meanwhile, a Muslim woman had to appear before a judge and assure that judge that her husband had committed an act included in the categories which are stated in the marriage agreement, usually called ta’lq alq, if the husband had refused to divorce her. After 1974, both man who wants to repudiate his wife, and a woman who wants to file for divorce, what is known as khul‘, must appear before a judge and convince the judge that one or more of the sanctioned reasons are present.39 The first task of the judge is to verify whether there is a valid reason or justification as specified in the limitation list for divorce or khul‘ grounds. If the judge has

106 modernization, tradition and identity satisfied him or herself that a valid reason is present, the judge can order a husband to repeat the formula of divorce, or can grant a wife’s request to have the marriage annulled.40 These provisions have been adopted and elaborated by the kompilasi. II Criticism of the Kompilasi The kompilasi which has been put into effect has a number of reformist ideas incorporated in it. Some Indonesian Muslim scholars are satisfied with it, but others are disappointed. Debates on and repudiations of some of its provisions have inevitably arisen among them. Even some of the ‘ulam’ involved in its making have clearly expressed their uneasiness with some matters as the ultimate decision lay in the hands of the project committee, the majority of whom were Government agents. The fact that those attending the seminar were not given sufficient time to study it properly and give their informed comments in the forum, as mentioned in the previous chapter, were taken as a sign that the voices of the ‘ulam’ were not fully taken into consideration. A number of ‘ulam’ even said that they did not get any idea that a number of rules introduced in the kompilasi are in contradiction to the shar‘a. Moreover, the kompilasi is considered to have been weakened by employing the authority of the President. Above all, in relation to the interests of women, no representatives of feminist groups attended the seminar. The female participants, whose names have been recorded in the previous chapter, were not drawn from their ranks and, more importantly, do not share the same views and interests as the feminists. II.1 Fiqh Texts versus the Qur’n It is impossible to abstract the debate on the kompilasi from the classical contestation between traditionalists and modernists, represented in organizational form by NU and the Muhammadiyah, and their attempts to engage in the discourse of the application of Islamic law in Indonesia. It is important to recall that the establishment of the Nahdlatul Ulama should be seen against its historical background. NU was formed when the Muhammadiyah, which was set up in 1912, began to exert its influence among traditionalists by calling upon Muslims to return to the original scriptural sources, the Qur’n and adth. By adopting this slogan, the founders of this organization had the development of an Islamic practice appropriate to the challenges of the modern age in mind. They leveled the accusation that the stagnation of the Muslim world was the result of the blind adherence to the teachings of earlier generations of Muslim thinkers, which they thought was the practice among tradition

debates on the kompilasi hukum islam 107 alist Muslims.41 As a reaction to what they considered an unjust criticism, some prominent ‘ulam’ in Java began to voice their interests as representatives of the traditionalist practice of Islam, on the basis of the kitab kuning (yellow books in Arabic script), and to provide a more sustained response to modernist encroachment. On 31 January 1926, a new body called the Nahdlatul Ulama (the Revival of the ‘ulam’) was set up.42 It is understandable that these two organizations have always been engaged in competition, if not confrontation, with each other. This is particularly apparent in the ways they view Islamic legal problems and consequently the way they seek references to support their legal stances. NU has tended to seek to understand Islam and find answers to current problems by referring to fiqh texts. Its ‘ulam’, including those who claim Bath Mas’il membership, feel that it is presumptuous to refer to the Qur’n and the Prophetic tradition. They have even claimed any person who directly cites Qur’nic verses to support their way of thinking is sesat dan menyesatkan (misled and misleading).43 This is in sharp contrast to the Muhammadiyah which, in its attempts to understand Islam correctly, is inclined to refer directly to the Qur’nic verses, and suggests that every Muslim has the right to interpret the Qur’n. In the eyes of this organization, true “Islam” is what the Qur’n and the Prophetic tradition say.44 In an intriguing juxtaposition, NU has now become much more moderate and flexible than the Muhammadiyah Rifyal Ka’bah. A Supreme Court judge, one of the elite members of the Muhammadiyah, has confirmed this fact. In an interview with Suara Hidayatullah, he criticized the attitude of the Muhammadiyah’s Majlis Tarj (Council for Opinions), in its perspective on modern issues and the methods adopted by its members in demonstrating their arguments. The point of his argument is that the Majlis Tarj is too Qur’nic- and adth-oriented, while there are only a few people among Muhammadiyah activists and even its Majlis Tarj members who truly understand the Qur’n and the Prophetic traditions. As a Muhammadiyah activist, in essence he agrees with calls for Muslims to refer to the Qur’n and adth in seeking answers to contemporary problems, but he is very unhappy about how superficial the Majlis Tarj members are in understanding of the Qur’n when they are called upon to solve complicated Islamic questions. Through this practice of referring directly to the Qur’n and adth, Ka’bah is anxious that in its reformulations of Islamic law, the Muhammadiyah is often too adamant and more conservative than the NU.45 While nowadays a rapprochement is assumed, as they have to some extent attempted to draw closer to each other, a lingering contestation is still apparent when it comes to viewing social problems and finding the

108 modernization, tradition and identity Islamic rationale for their views, and this is well reflected in their debates on the kompilasi. From what I have been able to observe, NU feels that the provisions of the kompilasi have been formulated without consulting the fiqh texts properly. Irfan Zidny, the chairman of the Sharī‘a council of this organization, has insisted that, even though the Qur’n, followed by the adth, are the main sources of Islam, the fiqh texts remain the primary references to be consulted in seeking precedents for points of Islamic law.46 His opinion reflects the position of the NU’s Bath al-Mas’il when it attempts to deal with legal questions posed by its members.47 Explaining the procedure this council follows in issuing fatw (religious decrees), Zidny stated that: firstly, they identify the problem or case, and secondly, they look at tafsr books, but should no tafsr book deal with it, they go to fiqh books, but such mu‘tabara ones as al-`Umm of al-Shfi’ and then after that to commentaries. 48 Zidny argues that the kompilasi is still an unacceptable work, above all because a number of its provisions have deviated from the classical doctrines of the fiqh texts. He is adamant that if any rule can be located in fiqh books, it should be followed unreservedly. We are not mujtahid, we are muttabi’ (followers). Our leading ‘ulam’ who are endowed with the capacity to understand the fundamental sources of Islam have interpreted the Qur’n, adths and the like and what we need to do now is to follow what they have interpreted. If they are silent about cases with which we are now confronted, then we have to struggle to solve these and find the rules which govern their solution. If there are already rules on them, it is not our task to find other laws, but simply follow them.49 Zidny pointed out some examples to bolster his arguments, such as the matter of divorce, to demonstrate the deviation from the fiqh texts of the kompilasi. He argues that divorce is automatically put into effect as soon as a husband utters the required formula. In this respect, the religious court needs only to record it and not to legalize it. His position of adhering closely to the fiqh texts can also be gleaned from his views on the prohibition of inter-religious marriage between a Muslim man and a non-Muslim woman, as this is ruled upon in the kompilasi. Referring to some fiqh books, he argues that the majority of the founders of the Sunnite schools of Islamic law permitted this. Without making reference to the Qur’nic text, which also explicitly permits it, he views the position adopted by the kompilasi on this issue as quite a radical departure from the prevalent opinions in the classical fiqh texts. Zidny’s opinion is not the same as that propounded by liberalist and

debates on the kompilasi hukum islam 109 feminist groups. Setting out the opinions of all the Sunnite legal schools, he proposes that the kompilasi should consider the possibility, however remote, of the existence of purely ahl al-kitb (the People of the Book) women, and differentiate women of this kind from those of other religions, thereby allowing a Muslim man the latitude to marry such a woman believer. If the kompilasi is truly trying to be as careful as possible in this matter, as it relates to faith issue, it should at least consider alShfi’’s view, which places a strict condition on such a marriage. The woman’s profession of al-kitb must not be disrupted by the conversion of one of her descendants to another faith (kitbiyah khlia) when permitting such a marriage, is how he analyses the matter.50 In even more unequivocal tones, he has proposed that the kompilasi should not prohibit such a marriage but allow it under very strict conditions, as is the view of the al-Shfi’ school. Interestingly, he supports the concept of waiat wjiba used by the kompilasi to solve the problem of adoption, deeming it an appropriate rule. Indeed, this sort of issue was not dealt with in the fiqh books, so it cannot be considered to deviate from fiqh doctrine. This quite clearly demonstrates that it is those rules which deviate from the fiqh doctrines which are the target of his criticism. Doubtless, such a standpoint has been influenced by the central position of fiqh books among the NU ‘ulam’. In contrast, the Muhammadiyah is of the opinion that some provisions of the kompilasi have ignored Qur’nic texts. This organization announced that referring directly to the Qur’n is a must in the deductive precedents in Islamic law.51 It is also from this context that, in contrast to the adherents of NU who resort repeatedly to the fiqh books in criticizing rules in the kompilasi, Muhammadiyah legal experts tended to refer directly to the Qur’nic text to provide arguments for their criticism of the kompilasi. When asked about the rule on inter-religious marriage, Ichtiyanto, from a modernist background and a former Director of the Islamic Justice at the Ministry of Religious Affairs (1977-1982), also criticized the position taken by the kompilasi. However, unlike Zidny, who tended to base his views more on references to the opinions of the four leading Sunni schools, Ichtiyanto has tended to explore the Qur’nic verse which states that it is lawful to marry women from the People of the Book. He has interpreted the words wa al muant alli `t al-kitb as an explicit sign allowing a Muslim man to marry a woman of the Book. This includes Christians. Besides the belief that it is quite hard to find women of the Book as intended by the Qur’n, Ichtiyanto has understood that the position adopted by the kompilasi reflects the prevailing concern among Muslim leaders about the campaign to propagate Christianity among Indonesian Muslims, and of their perception that inter-religious marriage is a covert

110 modernization, tradition and identity tactic of Christianization. In this context he has emphasized that the departure of the kompilasi from the Qur’nic text is therefore in the sake of public interest (malaa). However, he has maintained that whatever the reason was, such a prohibition is in contradiction to the text of the Qur’n which reads “… do not forbid what is allowed by God.” As some provisions of the kompilasi contradict what God has decided, he claims that the drafters of the kompilasi have strayed beyond the Qur’n and become mu’tadn. He also understood that such a prohibition would have a negative effect on Muslim interests. In fact, such marriages had still been performed even after the fatw of the MUI, which was restricted exclusively to Qur’nic quotations, as he himself tended to do, and adduced no fiqh texts as arguments prohibiting such a marriage. Even worse, he added, such marriages were conducted and registered by the civil marriage registrar.52 What has just been said shows incontrovertibly that as far as the Muhammadiyah is concerned, the Qur’n and the adth are unquestionably the main references which must be consulted directly in deciding Islamic legal issues. Another Muhammadiyah legal expert, Ma’rifat Iman, has criticized the tendency of judges in the religious courts to quote too many fiqh books, at the expense of the Qur’n, in constructing the argument for their judgments.53 Furthermore, Ichtiyanto censured the kompilasi, whose creation, he believed, involved for the main part ‘ulam’ from and representing NU, and was more conservative than Shfi’te jurisprudence itself. In this regard, he accused the NU adherents of not referring directly to the fiqh texts written by al-Shfi’, such as al-’Umm, but fiqh books written by the Shfi’ite followers.54 II.2 Islamic or Adat Law? The debate on the kompilasi also involved Muslim scholars and legal experts from both NU and the Muhammadiyah, who questioned whether or not it was appropriate to call this Islamic law. The first point at stake concerns the adoption of the kompilasi of adat law, first and foremost in inheritance issues with a bearing on the system of representation and obligatory bequest. The accommodation of the local practice of joint property does not seem to have elicited any heated debate. Yahya Harahap comments on this, saying that this conformity can be attributed to the assumption that the maintenance of this institution offers more advantages than disadvantages. Therefore, because of regard for public interest (malaa mursala) ‘urf can be observed, unless it contradicts the Qur’n and the adīth. Harahap argues that the institution of the joint property can be admitted legally and applied. On the system of social stratification, the conformity as shown in the kompilasi is also per

debates on the kompilasi hukum islam 111 ceived as granting equal or egalitarian status to a husband and a wife in a relationship.55 In my opinion, it is certain that, although it relates to material goods or estates, the question of joint property differs from such matters as the representation of heirs and obligatory bequests, which also relate to estates. The big difference is that the question of joint property is associated with the estate of living persons for which a ruling has not been found, as it was not dealt with in either the fiqh or the Qur’n. Meanwhile, such matters as the representation of heirs and adoption relate to the estate of a deceased or dead person, and rules of distribution pertaining to this are abundantly defined in both the Qur’n and the adth, and legally defined in the fiqh. Such rules involve parties (heirs) whose shares have been defined, and would have been inconvenienced if other parties were suddenly designated to share with them. It seems that these are the specific considerations which have led to acceptance among Muslims of the ruling on joint property, and to debate in the cases of representation of heirs and adoption. It may be true that local tradition and Islamic doctrine can be harmonized, as shown in the matter of joint property. Since the reformed ideas introduced are not always felt to represent justice among people, the two rules are, though not publicly contested, inevitably still questioned. Considering that inheritance rules are dealt with abundantly in the Qur’n, ‘ulam’ have continued to remain very sensitive about the reforms introduced on this issue by the kompilasi. It is not difficult to recall how Munawir Sjadzali’s proposal to offer 1:1 ratio for the shares of males and females instead of 2:1 was strongly opposed by Indonesian Muslim scholars, as it was considered to have deviated from explicit text of the Qur’n. Besides taking issue with the methodological approach which Sjadzali used in quite a liberal manner, the criticisms also focus on the empirical levels on which Sjadzali based his ideas. Many Muslims consider the way Sjadzali applied terms like naskh and maqid al-shar`a, although the general context was familiar to them, as too liberal. They even thought it went so far as to endanger scriptural bases and Muslim religious beliefs. 56 Incontrovertibly, Sjadzali also received support from different scholars. Yahya Harahap, a former Supreme Court judge, is one of Sjadzali’s supporters, and offers a somewhat promising argument. He speculates that the half-share of a female in an estate, compared to the male, is the minimum limit. Accordingly, should a situation which requires more than half exist, the limit can be raised to an equal share as male, or even more than that. He expands on this by assuring that a female’s right to an estate is absolute, but the ratio of two to one is elastic and therefore can be changed. He goes on to draw an analogy of this with the case of, for example, murder. He argues that killing is harmful and therefore

112 modernization, tradition and identity whoever commits a murder must be punished, but the forms of criminal penalties applied are not rigid. They can be adapted to the situation or condition which prompted the murder.57 Here, he wants to emphasize that there is a difference between some fixed injunctions which cannot be changed and those that can be interpreted conditionally. Criticism of Sjadzali’s ideas reminds us of Hazairin’s initial proposal for the system of the representation of heirs (mawl) in inheritance, which inspired the application of the representation of heirs in the kompilasi. In the seminar on national inheritance held in 1964, Toha Yahya Omar, a graduate of al-Azhar University, and Mahmud Yunus, a wellknown Indonesian professor of Islamic Studies, strongly reacted to Hazairin’s idea and accused it of deviating from the established Islamic rule of inheritance of both the Sunnte and Sh’te schools. The debate in the seminar focused on the discussion of Verse 33 of Chapter 4 (al-Nis’). There was no agreement between them in interpreting the verse, as they diverged enormously in the matter of the i‘rb (grammatical explanation) of the verse. While Omar and Yunus positioned the words alwlidni and al-’aqrabna as ‘hl’ from the word mawl and mentioned that the subject of the word taraka is the word kullin, Hazairin considered them to be the subject of the word taraka. 58 Reviewing this issue, another Muslim scholar, Ismuha, said that both interpretations could possibly be applied. He tended to support Omar and Yunus in considering the adth transmitted by Bukhr. 59 In contrast to that of Sjadzali, Hazairin’s idea was incorporated into the kompilasi and there may be some good explanations for this. The most cogent argument is that the idea of representation had been adopted earlier in another Muslim country, Pakistan, to deal with the same matter. Wisely, Hazairin did not challenge the explicit text of the Qur’n, as in the application of his concept he retained the ratio of 2:1 for male and female.60 Another pertinent reason might be that the local traditions of various regions in Indonesia concur almost exactly with the idea of the representation of heirs. No less important is the idea that freeing the orphaned grandchildren from poverty errs on the side of justice. It is an idea with which other Islamic countries have been concerned, although they have differed in finding its solution; Egypt and other Middle Eastern countries chose the adoption of the obligatory bequest, and Pakistan opted for the acceptance of the doctrine of representation.61 Nonetheless, like Pakistan,62 the inclusion of the system of representation of heirs into the kompilasi by Indonesia has, as mentioned earlier, provoked debate from diverse camps among Indonesian Muslims. Some scholars of Islamic law, including Amir Syarifuddin, a professor of Islamic Law at the State Islamic University in Jakarta, concerned with the re-actualization of Islamic law, and Roihan Rasyid, a former lecturer

debates on the kompilasi hukum islam 113 of the State Institute for Islamic Studies in Yogyakarta, have maintained that the application of the representation of heirs is positively grounded in Islamic law and hence they have supported the rule. They mention that the system has been customarily practiced among certain groups of Indonesian Muslims through the system of plaatsvervulling. As local tradition (adat or ‘urf) constitutes one of the sources of Islamic law, they have argued that the local practice of the representation of heirs could be legalized through the legal maxim of ’al-‘da mukama. However, they gave due notice that the adoption of this established local practice could not be absolute, and some modification was required. A number of modifications were therefore duly applied. The portion of the representative heirs is not to exceed the portion of the other heirs whose positions are equal to the substituted heirs, and this principle was, as mentioned in passing earlier, indeed set down in the kompilasi. Therefore, if the deceased leaves two heirs, including one daughter and one grandchild of a predeceased son, the estate is divided equally between them. Each gets one-half. This limitation is a necessity as long as the ratio of 2:1 is preserved. This is to prevent injustice to an aunt. Furthermore, the principle of the representation of heirs is not to be applied if a deceased leaves behind heirs including a father, a mother, a husband or wife, and a sister(s) or a brother(s) whose shares will be lessened by the presence of a representative heir, unless they consent.63 This last principle was not adopted by the kompilasi, but its advocates have insisted that it must be applied by judges dealing with such a case. Unlike Syarifuddin and Rasyid, Minhajul Falah and Thoha Abdurrahman, both specialists in inheritance (far’id) from the Faculty of Islamic Law at the State Islamic University in Jakarta and the State Islamic University in Yogyakarta respectively, have strongly contested the idea. Their contention is that the kompilasi has ignored a more appropriate way of solving the problem of grandchildren, namely an obligatory bequest, by adopting such a precarious solution. They argue that the application of this system not only deviates from the established classical Sunnite system of inheritance, but it also creates some problems if applied in broader and more complex issues of inheritance.64 They have also asserted that the adoption of the concept was too imprudent and not well thought-out, giving the impression that it is the local tradition which grants grandchildren the right to inherit from their grandparents, following the concept of plaatsvervulling rather than the Islamic classical legal system.65 As a better foundation, they have proposed some adīth texts, such as that of Ibn Mas‘ūd, which reads: “In the case of heirs including a daughter, a daughter of a son, and a sister, the Prophet Muhammad decided that for the daugh

114 modernization, tradition and identity ter is a half of the share, for the daughter of a son is one-sixth so as to make up the two-thirds, and the remaining share is awarded to the sister” (Transmitted by Bukhr).66 The purport of their argument is that this adīth indicates that the Hazairin’s interpretation of the mawl is not correct, and simply proposed to legitimize a direct adoption of plaatsvervulling or “representation of heirs” which had been practiced by some Indonesians for a long time. Besides denouncing the concept as having no Islamic basis, these scholars have also criticized the term “representation” itself. They contend that a person does not have any inherent right to the property of his or her ancestor until the latter dies. When a person dies before the death of one of his or her progenitors, the pre-deceased person cannot be considered to have a claim in inheritance from his or her progenitor who will have died after him or her. Instead, he or she should be regarded as a pewaris (praepositus) and not ahli waris (heir). Consequently, there must be no claim through a deceased person that any of his generation or his heirs can act as his representative. In more direct words, they questioned how a deceased person can be substituted or represented in heir-ship while he himself cannot be regarded as an heir or, to put it another way, how children can inherit a right which is not credited to their parents. Following this logic, they then concluded that representation cannot occur between predeceased persons and their predecessors; and the only case to which the representation can be applied is therefore a case in which an heir dies before the distribution of the estate, considering that he or she was alive when his or her progenitor died.67 Just as with the principle of representation of heirs, the application of the institution of obligatory bequest to legitimize adoptive parties to a share in an estate has also aroused debate among specialists on Islamic law. One view holds that the abolition of the established practice of full adoption, which permits the adoptive parties to inherit from each other in the Muslim community, is impossible to realize fully. Adherents of this view find support for their interpretation in the principle that ‘urf or customary law can be maintained for the sake of public interest. Consequently, they argue that the system of wiya wjiba is the appropriate solution to the problem. They have also pointed out the fact that adoptive parties constitute close relatives or friends who deserve to inherit from each other. Ichtiyanto, one of the proponents of this idea, has referred to the concept developed by Hazairin that pertaulanan or “friendship” constitutes one of the principles which bring the parties concerned to give, make a bequest, and even inherit to and from each other. He recalls the Prophetic Tradition, which demonstrates that the Prophet once showed his very close relationship with his friends by giving them his things and

debates on the kompilasi hukum islam 115 making a bequest to them. Citing this legal action of the Prophet, he concludes that giving shares between adoptive parties as ruled in the kompilasi has an adequate Islamic rationale.68 In accordance with their inclination to use the system of obligatory bequest to solve the problem of the rightful inheritance of grandchildren, some scholars have contested the application of obligatory bequest as a means to deal with the adoptive problem in regard to inheritance. Holding true to his inclination to apply the obligatory bequest to the problem of orphaned grandchildren, Minhajul Falah, for instance, has stated that the application of the concept of obligatory bequest to the problem of adoption is not relevant. Adoption, he maintains, could not affect inheritance among the adoptive parties, though by means of the institution of obligatory bequest. Adopted children may have spent a large amount of money from his or her adoptive parents, yet they are not to be granted shares from the deceased’s (adoptive parent) estate by a religious court. If it can be acknowledged that an adopted child played a significant role in developing his or her adoptive parent’s estate during their lifetime and is thereby considered to deserve a share from his or her adoptive parent’s estate, the division of the estate must be carried out by applying the concept of mushraka, as regulated in fiqh. 69 Similarly, Roihan A. Rasyid has accused the kompilasi in this regard of having departed from the Qur’nic text, which clearly decrees that the status of both the adoptive parent and the adopted child is not to be transformed into that of real parent and child, and therefore they cannot inherit from each other, except by obligatory bequest. The Prophet Muhammad’s marriage to the divorced wife of Zaid Ibn Thbit, his adopted child, is a clear signal that adoption did not result in any prohibition of marriage between the Prophet (the adoptive parent) and the exwife of his adopted child, as she was not considered to be his daughterin-law during her marriage with Zaid Ibn Thbit. This should be taken as a basic assumption that it does not produce any other legal consequences including those affecting inheritance. Above all, there is no classical fiqh text which discusses the matter, and neither has the jurisprudence in Indonesia nor that of other Muslim countries tackled the question. Therefore, if neither the Qur’nic injunctions, the Traditions of the Prophet, the decisions of the Companions, nor the practices of a particular society (umma) readily lead to the conclusion that the application of the institution of wiya wjiba as a means to deal with the adoption problem in regard with inheritance in the kompilasi is in accordance with the collective viewpoint of the community, there is no critical reason to uphold Article of 209 of the kompilasi. 70 Essentially, the upsurge in debates on both issues is not surprising. It is reported that almost none of the ‘ulam’ involved in the making of the kompilasi agreed with the proposal for the regulation that adoptive parent

116 modernization, tradition and identity and their adopted child inherit from each other, which is what had happened for a long time in some regions of Indonesia. Yahya Harahap, who was in charge of testing the opinions of ‘ulam’, admitted that the ‘ulam’ refused to countenance the adat law of adoption. But the necessity of bridging the contradictory rules of adoption between adat law and Islamic law left the drafters of the kompilasi no option but to ignore the objections of the ‘ulam’ and introduce the institution of wiya wjiba to accommodate the two conflicting rules.71 As has been discussed before (see p. 99), Hazairin’s initial proposal for the system of representation of heirs to deal with the problem of orphaned grandchildren was likewise contested. To add to the confusion, the introduction of these two systems in the kompilasi is somewhat peculiar in the sense that in the case of representation, it introduces an additional rule, namely a limitation on the portion of the representative heir, which Pakistan, while adopting the same doctrine, did not legislate. This limitation rule has indubitably given an extra edge to the debate. Moreover, the fact that the two issues to be resolved by these two systems have both been ineluctably practiced by Indonesian society has turned the debate towards a more principal point, questioning whether it is Islamic or adat law which provides the basis for the maintenance of their practices. Or, in other words, has adat adapted to Islam or vice versa in answering the problems? Bearing in mind that the majority of Muslim scholars agree in principle with granting a share of the deceased estate to orphaned grandchildren, and have preferred the institution of wiya wjiba to deal with it, I arrive at the question of why the kompilasi preferred the concept of representation of heirs to the institution of wiya wjiba to solve the problem of grandchildren. I assume that the drafters of the kompilasi realized that there is yet another problem which needs to be resolved, namely, that of adoptive parties. Having decided that the problem of adoption could not be solved by the concept of the representation of heirs, they chose to employ the concept of representation of heirs to the problem of orphaned grandchildren. At the same time, they had a tendency to employ one solution to one problem rather than employ one and the same solution to two problems by, for instance, the employment of the legal concept of obligatory bequest to the separate problems of orphaned grandchildren and adoption. With their minds firmly set on their own path, they insisted on the application of the principle of the representation of heirs, despite its lack of rationale in the Qur’nic texts, to the problem of orphaned grandchildren, and the obligatory bequest to that of adoption. Exploring the employment of the concept of obligatory bequest, if we refer to the Qur’n, we discover that the Qur’n (II: 180) commands a Muslim to bequeath part of his or her estate to his or her relatives.

debates on the kompilasi hukum islam 117 Although some Muslim jurists have agreed that the verse was abrogated by the verse on inheritance (IV: 7), others have maintained that the abrogation is only to be applied to those relatives who had been entitled to the definite shares elucidated in the Qur’n.72 Accordingly, they have believed that making a bequest is still recommended for those not entitled to definite shares of deceased estates. Ibn azm even considered that should a person have failed to make a bequest during his lifetime, a religious court is obliged to make a testament on behalf of the deceased.73 Adopting this point of view, some Muslim countries, especially Egypt as mentioned before, have employed the regulation of bequeathing to solve the problem of orphaned grandchildren whose shares in their grandparents’ estates, according to classical system of inheritance, would otherwise have been blocked by their uncles.74 Regardless of the inclusion of the different specifications of each rule on this issue, these countries have agreed that orphaned grandchildren should be given shares in their grandparents’ estates. As the consequence of employing the principle of bequeathing, the shares of orphaned grandchildren should be limited to one-third. The opinion of Muslim jurists that wiya could still be applied to relatives not entitled to definite shares of a deceased estate was utilized by the kompilasi to deal with a different problem. Facing a particular local problem of adoption whose practice is popular in Indonesia, particularly in Java – albeit in contradiction to Islamic doctrine as it allows adoptive parties to inherit from each other as real parents and children – the kompilasi preferred to retain the established practice of adoption rather than to abolish it. The drafters of the kompilasi refused to challenge the Qur’nic doctrine, which clearly undermines the full attribution of an adopted child to his or her adoptive parent and vice versa. The practice of giving and receiving of parts of each other’s estates, as in the case of the practice of ordinary inheritance between natural parents and children, is then thought to have been ended. It is in the institution of obligatory bequest that they have found an Islamic legitimization for maintaining the practice of inheritance between adoptive parties. Applying the regulation of obligatory bequest to adoptive parties, they have observed that the relationship between an adopted child and his or her adoptive parent is so intimate that it is interpreted by adoptive parties as concerning close relatives (al-aqrabūn). Having decided this, they ignored the established principle that a blood relationship is the valid perquisite for the distribution of the deceased’s estate to his or her heirs.75 Instead of recommending both adoptive parents and adopted children make bequests to each other before they die, the kompilasi has decided that a certain share, namely one-third, of their estates should be allotted to each of them after one or the other has passed away.

118 modernization, tradition and identity II.3 Marriage According to What Law? The debate that reflects the question on the Islamic legal basis of the kompilasi touches also upon the issue of marriage. Some Muslim scholars agreed that the registration of marriage cannot be regarded as one of the requirements of its religious validity, and can be only considered an administrative matter. They perceive the registration of marriage as aimed at preventing the practice of illegal marriage (nikah di bawah tangan) and functioning only administratively.76 Ali Yafie, one of the leading ‘ulam’, asserted that Islamic law is different from European civil codes considering marriage as merely a private affair, and thus regarding registration as a principal thing. Islamic law focuses more on the religious conditions and sees registration as administrative. It then affirms that registration of marriage cannot be regarded as one condition of the validity of marriage in Islam.77 In contrast, Amir Syarifuddin, a professor of Islamic law at the State Institute for Islamic Studies (IAIN) Padang (1983-1992), demanded the registration be one of the conditions for the religious validity of marriage.78 In proposing such an idea, he wanted to abolish dual validation of a marriage and to demonstrate that what has been established in one of fiqh books is not ultimate and final doctrine; Muslims can still change. He found support in the comparative knowledge of Islamic legal schools (al-‘ilm fi muqranat al-madhhib). These clarify that sharī‘a is indeed one, but fiqh has varied interpretations. The fiqh of the anaf, for example, had reduced the conditions for validating a marriage to those put forward by Shfi‘ in case of wl. For him, it is clear that the fiqh could be amended, as it was a product of human reasoning. Thus the Indonesian ‘ulam’, through their collective ijtihd, could add one or even more conditions of the validity of marriage, such as the registration of marriage, in accordance with the public interests of the Indonesian Muslims.79 Regardless of the different perceptions on the issue, it can be argued that on the one hand, the rule of the compulsory registration of marriage has been to some extent a form of successful adoption of reform ideas in Indonesia. Reasons for that are: firstly, failure to register marriage affects the validity of the marriage, although only in the eyes of the State; secondly, judicial recourse is denied in unregistered marriages; and lastly, marriages should be witnessed directly by the Marriage Register Official in order to ensure the marriages are registered. However, looking at the overall provisions of marriage, the kompilasi contains some ambiguities. First, dualism appears, as it admits the validity of the marriage if it fulfils religious requirements or if it is concluded according to the rules of religion, but claims it illegal in the view of the State if it is not registered. Accordingly, marriage validity becomes twofold, according to religious doctrine and State. Second, it does not regulate sanctions

debates on the kompilasi hukum islam 119 for those who do not register their marriages. Third, it provides a way for the unregistered marriage to be confirmed through the institution of ithbt nik. Although it is regulated that the ithbt nik can only be applied in certain cases, such as divorce, loss of the original certificate of marriage, doubts as to whether or not the marriage concluded is lawful, marriages conducted before the application of Marriage Law of 1974, and marriages concluded by the parties who are legally allowed to marry, it at least gives space for couples to ignore the rule of registration of marriages. With these conditions, couples see the opportunity for them to confirm their marriages in the future, as shall be discussed in the next chapter in greater detail. II.4 Subordination of Women? Other issues which have unleashed a gale of criticism are concerned with the rules of polygyny and divorce. The majority of Muslim scholars and judges have viewed the restrictions on polygyny introduced in the kompilasi as an appropriate position to be taken by the Indonesian Muslims and a dynamically advanced step in the discourse on Islamic law. Yahya Harahap, for example, thinks that this position has been adopted in the public interest or malaa. Referring to the Qur’n: 3 which sets out the rule of polygyny, he argues that the level of its legal basis is only reached with permission or ibha. Even this level of permission should be historically traced, as it was at the time permitted relevant to the situation or conditions of the society in the period of early Islam.80 Some ‘ulam’ and judges interviewed have agreed with the kompilasi and maintained that polygyny can be exercised if the reasons and requirements are met. One or more reasons must be first met, and then the conditions of the consent of the wife, being capable of treating his co-wives justly, and being financially capable of maintaining more than one wife, are subsequent upon the valid reason. Therefore, although a husband can present requirements, if no reason can be adduced, he has no right to enter into a polygynous marriage. Contrarily, they further said that if one of reasons covered in the kompilasi does exist, the consent of wife is no longer necessary.81 Nonetheless, it must be noted here that, as will be discussed in the next chapter, it often happens that judges fulfill the request of a husband who can prove that he is capable of maintaining his co-wives and whose wife states her consent, although he has provided none of the reasons enumerated in the kompilasi. The rule of divorce put forward in the kompilasi is also seen as a reform by the majority of Indonesian Muslim scholars, as its purpose is to serve the public interest. Amir Syarifuddin and Bustanul Arifin, two leading scholars of Islamic law, support the rule by upholding the interpretation of the Sh‘te School of the word washhidū following the words

120 modernization, tradition and identity dhawai ‘adlin in a Qur’nic verse. They claim that this interpretation is more appropriate than those of other schools of Islamic law, which are interpreted only as a recommendation (ibha). This is because, besides its relevance to the Prophetic saying, ‘The most detested allowed action by God is divorce’, it is in the spirit of the Qur’nic text which stipulates that divorce must follow several procedures, such as the process of attempted reconciliation (al-ul). Following the interpretation of Sh‘te, the kompilasi therefore rules that the divorce can be effective only if it is carried out/ pronounced before two qualified persons who must be defined as judges, they confirmed.82 Nevertheless, Muslim feminists have taken issue with this and argued that the reforms in this aspect are not adequate to ensure justice for women. To express their interests more effectively and systematically, they have established women’s study centers, which frequently organize seminars to discuss protection for abused women, orphaned children and other vulnerable groups such as single mothers. Among such groups are the Team Pengarusutamaan Gender (the Team of Gender Interests) of the Ministry of Religious Affairs, APIK (Asosiasi Perempuan untuk Keadilan, Association of Indonesian Women for Justice) under the supervision of the LBH (Lembaga Bantuan Hukum, the Association for Legal Aid), Rahima, most of whose members are young NU adherents, Rifka al-Nisa, Yasanti, LSPPA (Lembaga Studi Pengembangan Perempuan dan Anak) and others. Similar centers can also be found in a number of State Institutes of Islamic Studies (IAINs) in Indonesia. This indicates that the main public actors in debates about family law are no longer merely men, but women who are imbued with notions of gender equality. They actively explore the gender discourses which have developed throughout the Muslim world.83 In doing so, they benefit from national and international support concerned with the issues, acting in accordance with the United Nations “Convention on the Elimination of All Forms of Discrimination against Women”.84 Some activists in the groups have openly expressed their disappointment in a number of provisions regarding women’s issues in the kompilasi and other legislation presented by the State. They have accused the State of marginalizing women’s interests in favor of the opinions of ‘ulam’ and other established groups, which happened earlier in the case of the 1974 Marriage Law.85 Their argument is that since the Law upholds the voices of the ‘ulam’, unsurprisingly, those provisions which were then adopted into the kompilasi are far removed from a sense of justice for women. One clear example, they claim, can be seen in the provisions in the kompilasi on polygyny, which have not yet been conducive to the restriction of the practice. The members of several women‘s study centers have regarded the stipulations regulating the practice of polygyny as being

debates on the kompilasi hukum islam 121 gender-biased. They have insisted that it is not fair if husbands may enter into a polygynous marriage when their wives are unable to perform their duties as wives, or if they suffer from physical defects or an incurable disease, or they are unable to provide descendants.86 They have strongly criticized the reasons for which men are permitted to take another wife, and have observed that it is unfair that such physical problems afflicting wives are taken as reasons for husbands to enter into a polygynous marriage or to have other wives.87 In their eyes, the goal of marriage, namely to establish a happy family, is the responsibility of both husband and wife. So, if one of them has a problem, the other party should understand and share in the problem. If the wife has a physical infirmity, such as being unable to bear descendants, it is unfair if the husband takes another wife for the sake of own his interest, because that infirmity not only becomes the husband’s problem, it also a source of the wife’s dissatisfaction. They also question the Article which indicates that the consent of wives is not needed at all times or is not an absolute requirement. Indeed, the kompilasi states that for one or more reasons, a husband wishing to enter into a polygynous marriage can just do it if the consent of wives is impossible to gain (Art. 59). This rule asserts that in such an event, the physical infirmity of a wife weighs more strongly than such conditions or requirements as the consent of the wife.88 They also pose pertinent questions about the conditions or the assumptions often taken as a reason for entering into a polygynous marriage among Indonesian Muslim men, which states that statistically the number of women is far higher than that of men. They argue that this assumption might be only true in a comparison of older rather than younger people. Referring to other data, they concede that the number of elderly women is indeed higher than that of elderly men. The finding can be considered accurate on the basis of the medical assumption that the immunity of women is better than that of men, so that the life expectancy of women is higher than that of men. Accordingly, they conclude, polygynous marriage should be applied only to older women, if the statistical finding of this comparison of number of women and men is to be deemed valid grounds to conclude polygynous marriages.89 To Muslim feminists, the abandoning of the supreme right of the husband in the case of divorce in the kompilasi is also not a total reform. They feel the kompilasi is still inclined to support male superiority. The difference in words used to denote acts of divorce by both parties, the wife and husband – being cerai gugat for wife and cerai talak for husband- is claimed to prove this assertion.90 The term cerai gugat, used in the kompilasi to denote divorce requested by a wife, is asserted to maintain a superior right of husband in an act of divorce as, they argue, the words gugat cerai imply that a wife cannot divorce her husband but instead can only ask her husband to divorce her. The word gugat, accord

122 modernization, tradition and identity ingly, is deleterious to women facing a lawsuit. Women who want to petition for divorce must face a long and difficult trial process in the court, as they are considered to be plaintiffs. Therefore, claiming the use of two different wordings as a cover for gender bias, they have demanded that the wording be removed and replaced by the same wording as is used for a husband’s petition for divorce.91 The preservation of the classical fiqh concept of ‘iw or compensation in the kompilasi – in Indonesian, ganti rugi or tebusan, and which has to be paid by a woman to a husband when a woman petitions for a divorce in the form of khul‘ or ta‘lq alq as a monetary compensation for her petition for divorce – also came under fire. Some feminists have argued that this rule is a clear indication that the kompilasi still maintains that divorce is the absolute right of a man.92 This preservation of patriarchal ideology is also taken as proof that the law is often easier for a man to negotiate than a woman, a tendency which has led women to move to solve an internal domestic conflict and to fight for their rights against men in a lawsuit with the assistance of a lawyer.93 In requiring further reform on the issues, the feminists seem to have ignored the objections of a number of ‘ulam’ to the point of departure of the kompilasi in the case of divorce, particularly, from the classical doctrine. In fact, if modernists give solid support to the provision that a divorce can be considered valid only if it is pronounced before the court, traditionalists, such as Zidny, as mentioned before, maintain that the court cannot disallow the proclamation of divorce by a husband outside the confines of a court.94 Although not as frank as Zidny, Ali Yafie also seems to disagree with the rule. He looks at this issue in a way he viewed the rule of the registration of marriage. He argues that, contrary to the European civil code of marriage which stresses the administrative matter in what is considered a private issue as the principal matter, Islamic law stresses the religious conditions. Therefore, he regards the intervention of the State as limited to administering and recording such cases. He has also affirmed that he believes that the court cannot repudiate the validity and force of a husband’s pronouncement of the divorce formula. Although the modernists have different and more innovative views than the traditionalists, what the feminists demand in relation to the issues of polygyny and divorce does not seem to be in concert with either of these factions. To sum up all the discussions, it seems there can be no shadow of a doubt that there have been various perspectives about Islam in general, and Islamic (family) law in particular, among Muslims as individuals and as members of Muslim organizations. Basically, realizing the fact that the text of the kompilasi leaves many unanswered questions and that it did not incorporate a number of recommendations, the drafters of the kompilasi deemed it necessary to leave open the possibility of future

debates on the kompilasi hukum islam 123 developments through interpretation. Through the final provision of the kompilasi, they had indeed allowed space for such possibilities by requiring that, in their judgments, “… judges should consider the values of living law in order that their judgments shall conform to the sense of justice.”95 Nevertheless, this provision does not seem to have been enough to prevent the emergence of plenty of debate, and does not seem to have satisfied groups of Muslims whose identities and interests have not been covered in the kompilasi. III Proposal for Future Reforms III.1 Points Proposed to Reform As demonstrated above, the kompilasi has engendered an avalanche of criticism since it was issued in 1991. Aware of this situation and of the question of its legal status, many different groups of Indonesian Muslims feel that a review and reform should be attempted. On 19 September 2002, the Ministry of Religious Affairs set up an institution called the “Badan Pengkajian dan Pengembangan Hukum Islam/Institution for Studying and Developing Islamic Law (BPPHI).” The task of BPPHI is to study and develop the kompilasi. To achieve this purpose, the institution has proposed holding seminars, workshops and other activities to assist it in its work. Its members consist of Islamic legal professionals representing various Islamic organizations like NU, the Muhammadiyah, and the Council of Indonesian ‘Ulama (MUI).96 The founding of BPPHI is reported to tie in with the plan for upgrading the legal status of the kompilasi from a Presidential Instruction (Inpres) to a Statute (Undang-Undang). Said Agil Munawar, who was Minister of Religious Affairs at the time, said that the legal status of the kompilasi should be upgraded to statute. If this were to be accomplished, he added, an institution which would conduct an intensive examination and promote the development of Islamic law should be established.97 In keeping with this plan, the personnel of the institution would also be responsible for carrying out the study of contemporary Islamic law to be proposed as a draft statute. On 27 August 2003, the Ministry of Religious Affairs organized a seminar on the kompilasi, which I attended.98 Although the announcement said it would be held by the Ministry of Religious Affairs, in practice the seminar was organized by the Team of Pengarusutamaan Gender or Pokja (Kelompok Kerja) untuk Masalah-Masalah Perempuan (Working Team for Women’s Issues)’ and very much revealed gender interests. Half of the participants in fact represented feminist groups, while the other half represented various elements of Muslim life, such as NU, the

124 modernization, tradition and identity Muhammadiyah, the religious courts, the Supreme Court, the Council of Indonesian ‘Ulam’, Islamic institutions and researchers interested in the subject. In this seminar, Wahyu Widiana, the then Director of the Religious Justice at the Ministry of Religious Affairs (Ditbinbapera Depag), reported that since its establishment, BPPHI has been continuously engaged in discussing and analysing the rules in the kompilasi. Surveying the various discussions and debates held by BPPHI, Wahyu announced that BPPHI had recorded a number of proposals on rules to be revised. They were as follows: (1) Registration of marriage: registration must be made one of the conditions for the validity of a religious marriage and not be seen simply as an administrative affair; (2) Minimum age of marriage for both girls and boys: that of girls is proposed to be raised from 16 to 18 and that of boys from 19 to 21; (3) Mutual responsibilities between spouses; (4) Marriage during pregnancy: it is proposed that this rule be removed as it is considered to legalize free sex; (5) Ithbt nikh; its application can only be limited to certain situation as divorce; (6) Provision of sanctions in the case of the failure to meet some stipulations made in the kompilasi: it is proposed that the failure to some stipulations may incur imprisonment and payment of a fine; and (7) the clause “resulting in disharmony” attached to apostasy as grounds for divorce in Article 116 (h) to be removed. Apart from these points, in keeping with their criticisms, some other detailed revisions proposed by feminist groups present in the seminar were also noted. A number of feminist activists representing various women’s centers also vociferously contested provisions in the kompilasi they considered to exhibit a gender bias. Besides polygyny and divorce, they questioned provisions which they thought had been adopted in their entirety from classical doctrines and put women in a subordinate position. They pointed out the rules of guardianship in marriage, which stipulate that only males are appropriate to fulfill that role. They concluded that the Articles of the kompilasi dealing with the issue overall do not allow any room for female relatives, including mothers, to be guardians for their daughters’ marriages.99 They also corrected the fixed perception enshrined in the kompilasi of the superiority of a husband over his wife in their rights and obligations. They rejected the provisions of the kompilasi stating that the husband is the head of the family, that the husband is obliged to govern and supervise his wife, and that the husband should educate his wife in terms of religion without considering any possibility that husband’s religiosity might be weaker than that of his wife.100 They also rejected the rule stating that a baby has to follow his or her father’s religion, which, they argue, indicates that the drafters of the kompilasi have automatically assumed that a father’s religion is better than that of a mother.101 They even find the kompilasi unfair when it insists that a wife should obey and respect her husband and considers

debates on the kompilasi hukum islam 125 her a disobedient wife (nshz), a predicate which leads to her losing rights to maintenance, if she neglects her duties, whereas it does not apply the same rule to a husband or, in other words, it does not consider the possible disobedience of a husband.102 They are also critical of the lower minimum age of marriage for girls than for boys.103 Establishing 16 years old as the minimum age for girls, which is lower than that for boys (19), is seen by them as a legitimization of women as only second-rate citizens, there to obey men who are regarded as the first rank and are naturally assumed to be leaders. They have argued that by deciding to lower the age for girls, the kompilasi gives proof of an unequivocal expression of the wish to make it proper and appropriate for women to obey the men who are, in terms of age, older. Considering that these all provisions only exacerbate the subordinate position of women, the groups demand that they be amended. Observing that the points criticized by the feminists are numerous, it is more than evident that the feminists are convinced that the kompilasi is still unreceptive to their interests. A leading feminist associated with the Islamic Liberal Network (Jaringan Islam Liberal/ JIL), Musdah Mulia, has stated that the kompilasi, by laying down some rules which she thought still put women and children in subordinate positions thereby preserving men’s power, is still very conservative and does not exude a spirit of wanting to protect women and children.104 On another occasion, she has even alleged that the kompilasi preserves “barbaric” rules and accordingly has insisted that the agenda of future reforms will eliminate such “barbaric” rules, such as one which states that a polygynous husband could gather all his co-wives in one place.105 III.2 Controversy on the Counter Legal Draft of the Kompilasi Aware of the plan to upgrade the legal status of the kompilasi to a Statute and the amendment of its contents, a number of feminist organizations or institutions have been attempting to contribute to this. Although a formal institution, namely BPPHI, has been specifically set up for this purpose within the Ministry of Religious Affairs, and has made a draft which introduces a number of changes, other institutions have also felt they have right to contribute to its amendment. The Team of Pengarusutamaan Gender headed by Musdah Mulia has even drawn up and proposed a counter-draft, challenging the draft proposed by the Ministry of Religious Affairs to Parliament. Entitled Counter Legal Draft of the KHI or CLD-KHI, this draft includes such suggestions as a ban on polygyny, insistence on a contract of marriage, the obligation of both spouses to give mahr, the iddah for men, permission for inter-religious marriage: issues which had been highlighted in the critical debate of the kompilasi as mentioned above. This draft would allow spouses to make an agree

126 modernization, tradition and identity ment on the period of the marriage they are about to enter into. If ended, the period of marriage can be extended if both parties wish it to be so. Both the spouses must give each other mahr (dowry) and both of them can be parties who declare ‘jb (offer of contract) and qabl (acceptance). If the marriage ends either in divorce or the death of one party, a husband, just as is expected of a wife, must undergo a transition period within which he is not allowed to marry another woman. The length of the period for a husband is defined as the same as that defined for a wife. A Muslim man or woman can marry a non-Muslim woman or man according to the tolerance and freedom of the implementation of their faith. With such rules in it, the draft has also been arranged for submission to Parliament. In several interviews, Musdah Mulia has asserted that she has been fearless in fighting for gender equality and therefore had no plan to stop her struggle fighting for the rights of women. She is not alone, as she has obtained considerable support from female activists and liberalists, both involved and not involved in the team.106 Ulil Abshar Abdalla, the Director of the Islamic Liberal Network, for example, thinks that CLD is progressive and a great step forward, and should be supported. Maria Ulfah, the chairperson in Fatayat, a women’s organization of NU, endorses this opinion, saying that what the team has produced has to be respected as it is a more progressive and humane, and is more relevant to the conditions in contemporary Indonesia.107 Abdul Muqsith Ghazali, a member and the spokesperson of the working group, and Wahid Marzuki, a member of the working group, said that in light of the existing law, the kompilasi is too Arab-centric, and they have based proposed reforms on authentic legal bases.108 No text indicates that changing the established rules is prohibited, and therefore this implies that change is ultimately allowed, he argues. With such support, Mulia is pursuing her intention to bring the draft before Parliament where, she is sure, her supporters will defend it, and that some of its rules or even the whole, may be considered. The team has paid great attention to socializing this draft. On 4 October 2004, a seminar was held, formally opened by the Minister of Religious Affairs. Understandably, as it put forward such controversial proposals, it provoked considerable debate and was harshly criticized by various Muslim groups, including those in MUI and established Muslim organizations. They condemned the draft as being in contradistinction to Islam, and sent a letter to the Minister of Religious Affairs demanding he take action.109 In response to the MUI protest, the minister swiftly complied with the demand by sending a formal letter warning the head of the team to stop attempting to socialize the draft and to submit the original draft to the ministry.110 The minister also sent another letter to MUI, informing it that he had warned the director of the team and, to

debates on the kompilasi hukum islam 127 assure MUI that he did not specifically support the team, and that he had never issued a letter authorizing the formation of the team.111 By writing such a letter, the minister also formally declared the detachment of the draft.112 Specialists in Islamic law and judges also commented on the draft. Rifyal Ka’bah, a Supreme Court judge attached to Muhammadiyah, in the seminar held by Yarsi University (Universitas Yayasan Rumah Sakit Islam) on 29 October 2004, asserted that the team had overstepped the mark, and by proposing such a draft, it had assailed the legal opinions of prominent and qualified scholars of the Islamic law schools as the Shfi’ and others. He also claimed the members of the team were not adequately qualified to be mujtahid. 113 Tahir Azhari, the professor of Islamic law at the University of Indonesia and Hasanuddin AF, the professor of Ul al-Fiqh and the Dean of the Faculty of Islamic Law of the State Islamic University in Jakarta, openly said that the draft had introduced rules contradictory to the texts of the Qur’n and adth, and warned the people behind the draft not simply to rely on their feelings when trying to reform Islamic rules. Neng Zubaeda, a member of MUI, strongly contested the draft. He said that Islam in Indonesia is in danger, as feminists who are themselves Muslims have proposed reforms to family law which were too far-reaching. She went on to say that, as human beings, they place far too much value on worldly affairs and are neglecting the afterlife.114 While advocating that inter-religious marriage has to be allowed, thereby agreeing with the team, Ichtiyanto has contested other reforms and claimed that the feminists often neglect the Qur’n, and in doing so become mu’tadn (going beyond the Qur’ni texts). He has stated emphatically that, in proposing to amend or abolish a number of rules they found gender-biased, the feminist activists are too emotional and are referring only to their own interests. Therefore he stigmatizes this as a selfish agenda, which does not consider the interests of other groups. Therefore, although they appeal to universal principles of human rights, they tend to be self-oriented, he concluded. Furthermore, at the request of several Muslim groups who are aware of the existence of that controversial draft, a professor of Islamic Law who graduated from the Azhar University and is now a lecturer in the Faculty of Islamic Law of the State Islamic University in Jakarta, Huzaemah Tahido, wrote a small book to counter the provisions suggested by the team.115 This book was widely disseminated in religious courts and reprinted twice. In her book, she attempts to analyze the points of the kompilasi criticized by the team by referring to the texts of the Qur’n and the adth. She declares that a number of the contents in the draft drawn up by the Team are bid’a (unlawful innovation or heresy). She also accuses the team of ignoring the deductive method in Islamic law, which is based on the maintenance of the maqid shari’iyya, of which the aim

128 modernization, tradition and identity is to protect life, reason, family or reproduction, religion, and property.116 In my interview with her after she published the book, she said that she agreed with some reforms like the equalization of the minimum age of marriage for boys and girls, but the laws on divorce and polygyny should be maintained as they are set both in the Marriage Law and the kompilasi. On the issue of polygyny, she said: Islam has given an appropriate rule on the issue and that the conditions put in both the Marriage Law and the kompilasi upon which the polygyny could be conducted are logical. Imagine if a husband wants to have children and his wife cannot fulfill his wish. What is he to do if his wife does not offer him a solution, when he really wants it? So, there must be a rule to regulate this. And, under the rule provided in the kompilasi, he may be given a chance to have offspring by another wife. The consent of the wife is necessary, but if she is reluctant to give permission when there is a real reason, it can be ignored.117 It is particularly interesting to note that the Counter Legal Draft also unleashed a wave of criticism and protest among radical Muslim groups. Hizbut al-Tahrir, for instance, stood in the van to stage demonstrations to disparage the draft as the “Komunis” (Kompilasi Hukum non-Islam, or the Compilation of Non-Muslim Law’ and as the ‘Kompilasi Hukum Inkar Syari’at (the Compilation of Law Deviating Shari’’).118 The Majelis Mujahidin Indonesia sent a personal delegation to the Ministry of Religious Affairs to deliver a letter of protest to the Minister. In an openminded fashion, this organization also invited the team to hold a discussion.119 An association of Muslim university students, called KAMMI (Kesatuan Aksi Mahasiswa Muslim Indonesia/Association of Action of Muslim University Students), also protested the draft and expressed its gratitude when the draft was declared rejected. They accused the team of conspiring with Western secularists who, they claim, emphasize such wayward principles as liberalism and feminism.120 This controversial draft has also attracted criticism from Muslims at the grassroots level. It has become a topic discussed among, for instance, the people on the Internet and the members of pengajian (village-based Islamic learning gatherings). Preachers or tutors at the pengajian had inevitably been addressed with questions about the issues covered in the draft, which they have often found difficult to answer. Many people are dubious about the legal basis of the reforms and have asked why the legal doctrines to which they are completely attached are being challenged. This has

debates on the kompilasi hukum islam 129 aroused the curiosity of the tutors who naturally have wanted to know more about the reforms and the argumentation supporting them. As a result, they have consulted persons whom they consider to be authoritative. Some have talked to people against the reforms and some others with those for the reforms, attitudes which have led to a more open debate. A tutor at one pengajian who consulted a person about the reforms admitted to understanding where the team is coming from, but finds it hard to make her community accept it. The resistance to the draft has basically been linked to several factors. Under the impression that it is BPPHI which is formally given the authority to review points in the kompilasi, many have questioned if the feminists’ separate proposal will be given a hearing. Moreover, besides the conservative ‘ulam, – who also include those claiming to be modernist – still the most dominant group in interpreting Islamic law, the viewpoint on the principles they cite when proposing reform change in keeping with the times, conditions, and with different places. This in turn leads to the emergence of divergent views about what, for example, “justice” is. There are those who argue that if the share of a male is twice as much as that of a female, it could be considered as ‘just’ in one time and one place, it may equally be thought ‘unjust’ in another time and place, and that 21 years old is the appropriate minimum age for marriage among girls in urban areas, but might not be for those in rural areas. Not surprisingly, class looms large as a contributor to the conflict, and particularly in explaining why not all women for whom the feminists struggle support the reforms. Feminists mostly come from urban areas and are generally upper or upper-middle class and are economically stable. They are also well-educated and the majority are independent women. The problems which lower-class women experience may be different from those experienced by their more socially elevated sisters. Therefore, the attempt to abolish polygyny, as an example, may not be agreed with or accepted among rural women. They may prefer to share a husband with another woman, instead of being a widow without a man supporting her. Rather than arguing against the notion of male breadwinners, lower-class women, as will be clear in the next chapter, may prefer to question the failure of men to fulfill their economic duty.121

IV Between the Kompilasi and the Fiqh Texts One of the main objectives in creating the kompilasi was to unify the legal reasoning used by judges in Indonesian religious courts in order to achieve legal certainty for Indonesian Muslims seeking resolution of familial problems. Since the issuing of this Presidential Instruction, judges in the religious courts have indeed been required to base their judgments on the kompilasi, which presents a systematization or rationalization of the material law of fiqh. This was intended to prevent reliance on two different rulings in deciding two cases of the same nature, a situation which had frequently occurred in the judicial practices of the religious courts. This chapter sets out to analyze the judicial process in the religious courts, in order to establish whether or not the goals mentioned above have been achieved. This is to be done by examining the decisions handed down by some of the judges. In doing so, this chapter will examine in detail the continuity and change evident in the judicial practice of the judges since the issuing of the kompilasi. A detailed examination of the judges’ judicial practice, especially the way they seek and adduce legal bases for their judgments, is particularly important in establishing to what extent the judges have accepted the existence of the kompilasi, and in discerning the character of Islamic justice dispensed. I Legal Judgments: Form and Structure There is a more or less standard formula prescribed for the judgments issued by judges in the religious courts before and after the issuing of the kompilasi. It usually begins with Bismillahirrahmanirrahim (In the name of God, the merciful and the compassionate), followed by the sentence Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa (In the name of Justice founded on the divinity of Almighty God). The Basmalah used at the beginning of the judgment is to attest to the Islamic character of the religious courts. The sentence Demi Keadilan Berdasarkan Ketuhanan yang Maha Esa is to stress the goal of the judicial practice of the court, namely justice inspired by religious values. This phrase constitutes the first principle of the ideological foundation of the country, namely the Pancasila, and is not peculiar to the religious court. Other

132 modernization, tradition and identity courts also include this phrase in their judgments.1 This formula is prescribed in Law No. 1/1970 on the judicial system in Indonesia.2 The prescribed form continues by stating the name(s) of the plaintiff(s) followed by that of the defendant(s). The nature of the case (problem) brought before the court is described next, consisting of the statements, pleas and counter-pleas of the plaintiff and defendant, complete with the statements or testimonies of witnesses. This is followed by an exposition of the legal considerations or deliberations. This is based on information supplied by both sides, by the hearing itself, and by the argumentations based on the laws, the texts (na) of the Qur’an and the Sunna, or from fiqh books, followed by the decisions of the judges on how they have adjudged the claim. It ends by stating the time, day, and date on which the judgment is passed. It also includes the names of the judges and the clerk who dealt with the case, followed by their signatures.3 There are two kinds of judgments issued by the religious courts: penetapan (decree) and putusan (decision). A penetapan is handed down when the judges decide a case on the basis of a permohonan (petition) from one party, called the petitioner or plaintiff. In this case, no other party is involved as defendant (termohon). A frequently encountered example is the request for a decision about whether or not the plaintiff is an heir to a deceased praepositus (pewaris), or whether or not a group of people are the heirs of a certain person. As the penetapan is based simply upon a request from one party, it is legally valid for the plaintiff only. It has no executorial force. By contrast, a putusan is issued when the judges decide a case on the basis of a gugatan (claim) involving two parties, plaintiff and defendant. In this case, the judgments automatically have both condemnatory and executorial character. One such example is the dispute over the legal status of a person or of a group of people in an inheritance or a divorce.4 I must mention, however, that the differentiation between these two forms of judgments is somewhat confusing and hazy. It is stipulated that cases of polygyny and divorce initiated by a husband are categorized as cases of permohonan, which implies that they do not embrace the element of disputation and therefore do not involve a defendant. However, it is then stipulated that they are to be heard under the procedure for cases of gugatan, by which the wife is given the right to defend herself from the accusations of her husband and oppose his intention to divorce or enter into a polygynous marriage. This ambiguity in the rules, for both a divorce initiated by the husband and for polygyny, is seen as a revelation of the bifurcated position adopted by the formulators of both the Act and the kompilasi, in achieving reform and their lingering inclination towards the fiqh doctrines.5 Given the vagueness of the distinction, in this discussion I shall not differentiate between the two types of judg

between the kompilasi and the fiqh texts 133 ments in the religious courts, and hence use the term ‘judgment’ to refer to both kinds of cases. In deciding the cases brought before them, judges in the religious courts adduce legal reasoning in support of their judgments. They sum up the information received from the plaintiff or from both the plaintiff and the defendant, as well as the testimonies given by witnesses. Before the kompilasi was issued, they usually composed their legal considerations with citations from the Qur’nic texts (na) and the Prophetic Traditions, as well as statements or opinions of ‘ulam’ taken from the fiqh book(s). In some judgments, all these references are cited, and in other cases only one or two of them are mentioned. If the citation includes all the references, the ranking order of the references follows the hierarchy of the sources. The Qur’nic texts are put in the first rank, followed by the Prophetic saying(s), and then by the opinions of ‘ulam’ derived from the fiqh books. However, some judges ignore such an arrangement and list the references as they prefer. It is understandable that such sources were selected, for at that time there was no unified, substantive legal code which could otherwise be consulted. It is true that since 1974 there has been a Law of Marriage, and that since 1977 there has been a Governmental Regulation on Endowment (waqf). As their names suggest, these relate to two specific areas of Islamic law; the 1974 Law of Marriage deals only with rules concerning marital affairs, and the 1977 Government Regulation merely concerns endowment. The regulations for inheritance and other matters such as gifts and wiyat had not yet been legally codified at this time. Accordingly, although judgments on marital issues began to be based on the Law of Marriage and those on endowments on the 1977 Government Regulation, those on inheritance, gifts and wiyat were based entirely on such references as the Qur’n, the Prophetic Traditions, and the fiqh books. In addition, the Law of Marriage does not cover all familial issues disputed in the Muslim community. Marriage during a pregnancy resulting from pre-marital sexual intercourse was, for example, not mentioned in the Law, even though such cases were often brought to the religious courts.6 Consequently, the application of the Law of Marriage and the Government Regulation on waqf did not entirely end the citation of such references as the Qur’n, the Prophetic Traditions, and fiqh books. Even a number of judgments on cases which had been dealt with decisively in the Marriage Law listed only these references as legal reasoning, thereby ignoring the Law of Marriage.7 Muslim judges cited these references as follows: menimbang dalil dari al-Qur’n yang berbunyi… or dalil dari adth yang berbunyi… or dalil dari kitab ‘A’ yang berbunyi... (considering the argument in the Qur’nic text which reads…, and or the text in the Prophetic Traditions which states…, and or the opinions in the fiqh book ‘A’ which says…). The citations were

134 modernization, tradition and identity written before the decision stating whether or not a judge acquiesced in the petition or the claim and were put under separate headings. The judges usually wrote the original texts of every reference – from the Qur’n, the Prophetic sayings, and the statements of certain ‘ulam’ from certain fiqh books – followed by their own translations into the Indonesian language. They also included attributes of the references such as the relevant chapter and verse for the Qur’nic texts, the names of the transmitters for the Prophetic sayings, and the page reference for the fiqh books, and sometimes the volume of the fiqh books if necessary. After the passing of the Marriage Law, a number of judges introduced quotations of these references from the Qur’an, Hadīth and fiqh books in the judgments on marital issues, adhering to the articles in the Marriage Law of 1974, if the Law was cited. Used in this manner, in some judgments such references were no longer considered main references but simply supporting legal reasons, indicated by the words used to initiate these citations, which sometimes read, Kami perlu juga mengemukakan dalil yang berbunyi…/ “In addition to this, we need also to refer to the argument (legal text in the Qur’ān, Hadīth and fiqh books) which says...” However, in several judgments these references were mentioned and placed first in the list, which meant they were cited earlier than the Marriage Law. No matter how they were positioned, quotations remained frequent and dominant. There is no significant difference between the types of cases in which the doctrines from the fiqh books, the Qur’nic verses, and the adīth texts are displayed. In cases of all types, the references are quoted interchangeably. In spite of this, I found that although citation of the fiqh books was sometimes also noticeable, in inheritance cases the judgments were presented more frequently with a citation from the Qur’nic and adth texts. This may be because the rules of inheritance are clearly presented in the Qur’n. Therefore, in resolving issues of inheritance the judges felt obliged to go directly to the Qur’nic verses. In most marital cases, judges in the religious courts tended to quote fiqh books for their judgments. Yet, they sometimes also explored the Qur’nic texts. It is apparent that the citation of the Qur’nic verses was intended to give their decisions on certain cases a more solid Islamic legal basis. I discovered that, besides stating a number of legal doctrines found in the fiqh books, judges always quoted the Qur’nic texts stating “but if their intention is firm for divorce, Allah heareth and knoweth all things” (II: 227) for the judgment on divorce requested by a husband; “if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four” (III: 3) for the judgment on polygyny; and “divorced wives shall wait concerning themselves for three monthly periods” (II: 228) for the judgment related to the ‘iddah of a divorced wife. Meanwhile, in tackling cases of divorce requested by a

between the kompilasi and the fiqh texts 135 wife, ana (custody), walī ‘aal (the reluctant guardian) and others, the judges often simply quoted the legal doctrines from the fiqh books and rarely had recourse to the Qur’nic texts. These facts, plus the inescapable conclusion that most cases handled by the religious courts are marital issues, indicate the crucial position of the fiqh books in the judgments issued by judges in these courts. From the legal perspective, this is a coherent and logical phenomenon. As has been mentioned before, the use of the fiqh books had been formally recommended in 1958 when the Ministry of Religious Affairs limited the use of the fiqh books to thirteen. Still, it is interesting to note that, although there was such a restriction, the names of which have been listed in the previous chapter and most of which, except al-Fiqh ‘l alMadhhib al-‘Arba‘a, contain Islamic law on the basis of the Shfi‘te texts, the judges have always felt free to use fiqh books other than these thirteen as their references. However, as I have just remarked, the Shfi‘ite texts are predominantly preferred. Scrutinizing the judgments issued before the kompilasi was applied, I found that certain fiqh books besides the thirteen recommended were often quoted, including I‘nat al-libīn by Sayyid Bakri al-Dimytī, al-Muhadhdhab fi Fiqh Madhhab Imm al-Shfi’ by al-Shirj, and Minhj al-ullb by al-Anrī, all of which are also Shfi’te fiqh texts. II Change and Continuity The format of the judgments issued by the judges in the religious courts after the application of the kompilasi is generally similar to what it was before. It starts with Bismillahirrahmanirrahin, and is followed by the phrase Demi Keadilan Berdasarkan Atas Ketuhanan yang Maha Esa. It then mentions the names of the plaintiff and the defendant, gives a description of the case followed by the information from the plaintiff, defendant, and witnesses, presents the legal considerations, gives the decision and then closes by mentioning the names of the judges and clerk dealing with the case, along with the date when the judgment is handed down. The only obvious difference occurs in the part concerning legal considerations. In this part, besides the mention of the information provided by the plaintiff and the defendant, the citation of articles from the kompilasi relevant to the cases is also included. This still begs the question: does the kompilasi automatically replace the position of the fiqh books? In 2000, the Directorate of Religious Justice at the Ministry of Religious Affairs (Direktorat Pembinaan dan Pengembangan Peradilan Agama/Ditbinbapera) conducted research in which it monitored the application of the kompilasi. The research results reported that the kompilasi had been widely used by judges in the religious courts as the refer

136 modernization, tradition and identity ence for their judgments. But this research discovered that not all judgments issued since 1991 used the kompilasi as a reference.8 Analyzing 484 judgments issued in 1996, 1997, and 1998 from various religious courts spread across Indonesia, especially Surabaya, Yogyakarta, Bandung, and Jakarta, it came up with 300 judgments of the firstinstance religious courts which used the kompilasi as a reference, and 116 which did not. It then concluded that in the first-instance religious courts, the percentage of judgments using the kompilasi as reference is far higher than that of those which do not.9 Interestingly, it seems that in the appellate religious courts the kompilasi is rarely used. It found that of sixty-eight judgments only thirty-one used the kompilasi. It then concluded that the use of the kompilasi by judges in the first-instance religious courts has been more frequent than by those in the appellate religious courts. Table 4.1 Decisions of the First-Instance Religious Courts and Appellate Religious Courts with and without the citation of the Kompilasi Source: “The Report of the Monitoring of the Application of the Kompilasi”, Ministry of Religious Affairs, 2001 The research was an important contribution to the management of the development of the religious courts. The Ministry of Religious Affairs had at least confirmed that the existence of the kompilasi was widespread and accepted among the judges. Although mindful of its usefulness and necessity, I have identified some weaknesses in the research. The first point which might be viewed critically is that the aim of the survey of the Ministry of Religious Affairs on this issue was to establish whether the kompilasi had been successfully applied. It seems to me that the objects No Cases 1996, 1997, 1998 First Instance Religious Court 1996, 1997, 1998 Appellate Religious Courts With kompilasi without kompilasi with kompilasi Without kompilasi 1 Divorce (wife petition) 94 36 6 12 2 Divorce (husband petition) 95 25 7 9 3 Custody (ana) 17 8 3 5 4 M. annulment 31 6 8 3 5 Guardianship 11 11 - - 6 Polygamy 35 20 1 3 7 Joint property 17 10 6 5 Total 300 116 31 37

between the kompilasi and the fiqh texts 137 of the survey were selected to support the aim. Tellingly, the courts chosen were those located in large urban areas like Jakarta, Surabaya, and Yogyakarta where those elements which support the application of the kompilasi are met. Furthermore, the research did not show accurately why the kompilasi had not yet been fully accepted as a reference by some judges. Nor did it demonstrate specifically why the kompilasi was used as a reference less in the appellate religious courts than in the first-instance religious courts. It merely concluded that judges in the appellate religious courts were less legally aware than those in the first-instance religious courts. In the part displaying the dependent variables, explaining why the kompilasi was not yet fully used as reference, the research enumerated a number of related factors. I think there is some ambiguity in this presentation of the factors explaining why the kompilasi has not been well used. It tended to explore reasons such as the dichotomy in various understandings of Islamic law among the traditional Muslim scholars, which I feel relates more to the issue of why the substance of the kompilasi has not been well applied. On the other hand, the research is on solid ground when it states that the kompilasi has been generally applied, and that the absence of the citation of the articles of the kompilasi in a number of judgments did not mean the judges had deviated from the provisions of the kompilasi, but implied their application in an implicit manner. What I mean is that the research, using the categories of citing or not citing the kompilasi, clearly focused on whether or not the kompilasi was taken to be a reference or legal consideration, and did not attempt to report on to what extent the substance of the kompilasi has been applied, as it did not display any example of judgments which indicated this. Meanwhile, the reasons why a number of judgments were not backed up by the kompilasi are related more to the issue of the application of its provisions. There is therefore vagueness in precisely what it is about the kompilasi which is being observed; the application of its contents or the citation of its articles in the judgments. In addition, the research reported that a few judgments did not use the kompilasi as reference, but gave little information about the sources to which these judgments referred. It recorded that the sources quoted included the Law of Marriage and others. Fiqh books are not noted. Why the research did not take note of this is uncertain and questionable. Similar research was also done by Nuryamin Aini. Focusing on the judgments produced by the religious court of South Jakarta, Aini found that the fiqh texts are still considered crucial within the religious court of South Jakarta. Although he observed the application of the kompilasi, as did the Ministry of Religious Courts, Aini did not look into the use of the kompilasi more comprehensively, as he did not observe it through the perspective of the application of its contents. Therefore, although he did

138 modernization, tradition and identity discuss and mention few reasons why the fiqh texts are still dominant, Aini did not answer why and in what cases the kompilasi has not been well applied.10 To fill this gap, I have resolved to look more deeply into the use of the kompilasi by the judges in the religious courts in their search for the legal considerations for their judgments. For this purpose, I shall take account of not only their quotation of the fiqh books, but also ask whether or not the legal doctrines of the fiqh books have been maintained in dealing with the cases for which the kompilasi sets different rules, in order to discover whether or not the kompilasi has been fully applied. III The Central Position of the Fiqh Texts After examining 118 judgments collected and chosen at random from various religious courts including South and East Jakarta, Cianjur, Tasikmalaya, Rengkasbitung (Lebak), and Bogor and from other courts in West Java and from the Supreme Court, mostly issued between 2000 and 2001 with a few ranging from 1992, I discovered that seventy-seven judgments used the kompilasi as reference. However, its citation did not appear alone, but was placed alongside other references like the Qur’n, the Prophetic Traditions and fiqh books. Seventeen decisions used only the kompilasi, thereby ignoring the other references. Twenty-four of them include only such references as the Qur’n and fiqh books. Therefore, although almost all the judgments have cited the kompilasi as a reference, references resorted to previously are still cited by the judges. The table unequivocally shows that the judges in these areas have formally recognized the existence of the kompilasi, revealed in their use of the kompilasi as their main reference. This still did not preclude them referring to other references in use before the kompilasi was issued, the fiqh books in particular. Moreover, although the kompilasi is quoted, in most judgments, its quotation is coupled with excerpts from fiqh books. In short, this figure confirms that quotation of fiqh books is still dominant. It shows that the quotation of the fiqh books is quantitatively more frequent, being 101 times; that is, seventy-seven plus twenty-four times, than that of the kompilasi, being ninety-four times, or seventy-seven plus seventeen times. The conclusion which has to be drawn is that the judges are very reluctant to dispense with citation of fiqh books. Logically, by citing only the kompilasi, the judges have indeed basically referred to them anyway, as the articles in the kompilasi are grounded on the fiqh books.

between the kompilasi and the fiqh texts 139 Table 4.2 Decisions with only kompilasi, with kompilasi and other references, and without kompilasi *The category of “with other references” means that fiqh books are quoted besides the kompilasi. *The category of “without the kompilasi” means that fiqh books are quoted without making reference to any provisions in the kompilasi. In their attitudes toward quoting legal doctrines from fiqh books, judges have displayed behavior deserving of some comment here. Looking over the judgments in my collection, I found that certain fiqh books are more frequently cited by the judges of all the religious courts than are others, including 1. al-Dimy’s I‘nat al-libīn, 2. al-Bjr’s shiya Kifyat al-Akhyr, 3. Sharqw’s shiya ‘al al-Tarīr, 4. Al-Anwr, 5. Al-Muhadhdhab, 6. al-Rf’s Mu‘īn al-ukkm11, and 7. Suy’s Al-Ashbh wa alNaz’ir. 12 It should be noted that these seven books are those which were also often cited before the kompilasi was issued. Not all of them are among the thirteen recommended fiqh books. Of the seven books mentioned above, only two are included in that group, namely, al-Bjrī’s shiya Kifyat al-Akhyr, and Sharqwī’s shiya ‘al al-Tarīr. However, all the books pertain to the category of Shfi‘te texts. In contrast, there are some recommended fiqh books which were seldom or even never cited by the judges. These books include: Shamsrī’s al-Far’i, al-Jazir’s al-Fiqh ‘al al-Madhhib al-Arba‘a, Sayyid Uthmn’s al-Qawnīn al-Shar‘iyya, and adaqh Dakhln’s al- Qawnīn alShar‘iyya. Although seldom or never cited, this does not mean that these books are not well used among the Indonesian ‘ulam’. The last book in the list, Sayyid Uthmn’s al-Qawnn al-Shar‘iyyah, a discussion of the methods of judicial practice and the legal rules on familial issues, for No Cases 2000 2001 Total only kompilasi kompilasi with others without kompilasi 1 Divorce (husband petitions) 5 27 3 35 2 Divorce (wife petitions) 7 39 6 52 3 Ithbt nikh 2- 3 5 4 Polygyny - 2 3 5 5 Maintenance - 2 - 2 6 Guardianship 1 2 - 3 7 Joint property - 3 1 4 8 Inheritance - 1 4 5 9 Child custody 2 1 4 7 Total 17 77 24 118

140 modernization, tradition and identity example, has been certainly well known among a number of the senior ‘ulam’ and earlier judges (penghulu).13 Pijper noted that this book was once used as a reference for a case of divorce related to apostasy committed by a couple, which was heard in the religious court of Bogor in 1920.14 Among the penghulu of the religious court of Palembang, this book was also frequently used.15 Despite its earlier appreciation, I did not find any later judgments referring to this book in my collection. Although written in Arabic script, the book is composed in the Malay (Indonesian) language, and for this reason has not been included among the subjects in the syllabi of the Islamic boarding school (pesantren) in the past.16 Consequently, it is not widely known among the young santri, hence the ignorance of it among later Muslim judges.17 Interestingly, the fact that the book is written in the Indonesian (Malay) language has prevented it from winning preference among those later judges who do happen to be acquainted with it. Indeed, the Arabic script carries great authority in the eyes of the traditionalist ‘ulam’, while legal doctrines expressed in the Indonesian language are considered to have less legitimacy among judges for purposes of written legal consideration in their judgments. They are of course taken as legal reflections, but it is rare that these are written down as legal considerations.18 In the judgment on the case of the divorce related to apostasy mentioned by Pijper, the use of the book was not in fact primary. It was mentioned that the judgment was based on the opinion of Sayyid Uthmn, but it was then stressed that Sayyid Uthmn followed the legal text of the Naww’s Minhj al-libīn19. In the judgments mentioned by Rahim, the reference to this book was also often accompanied by other fiqh books such as al-Bjr’s shiya Kifyat al-Akhyr.20 This leaves the question of why Sayyid Uthmn’s work was included among the group of thirteen recommended fiqh books. It seems that it was because the book, composed by this well-known Batavian scholar of Arab descent, is considered one of the mu‘tabara (reliable) fiqh books.21 Another reason was probably related to the fact that the selection of the thirteen fiqh books was not made simply for the purpose of providing legal references for judgments, but also to provide the bases for the legal procedures in the religious courts, discussed comprehensively in Sayyid Uthmn’s al-Qawnn. It was also, as has been mentioned above, because it was one of the references used by the Raad Agama which the penghulu were reported to have often consulted.22 Another fact which should be mentioned is related to the existence of a book entitled Alasan Syar’i Penerapan Kompilasi Hukum Islam (The Islamic Rationale of the Application of the Kompilasi Hukum Islam), published by the Directorate of Religious Justice at the Ministry of Religious Affairs. This book consists of articles from the kompilasi, especially the chapter on marriage, giving the corresponding Islamic grounds for each

between the kompilasi and the fiqh texts 141 article from the Qur’n, the Prophetic Traditions, and fiqh books.23 An official in the office pointed out the publication of this book was intended to illustrate that the articles of the kompilasi derived their Islamic legal rationales from the Qur’n, the Prophetic Tradition, and the fiqh books.24 Despite the existence of this book, I found that judges in the religious courts felt free to quote doctrines from fiqh books other than those used in the book. From my observations, almost all the judgments in cases of divorce related to the utterance of ta’lq alq or conditional divorce, for example, are backed up by the legal doctrine from Sharqwī’s shiya ‘al al-Tarīr, which reads, “Whoever makes his talak dependent upon an action, the talak occurs with the existence of that action according to the original pronouncement.”25 Meanwhile, I discovered that Article 116 (g) of the book, which deals with this issue, is based on the legal text from al-Bjrī’s shiya Kifyat al-Akhyr, page 153, which reads, “And if the talak is made dependent on a conditional action, that conditional divorce occurs when that action is present.”26 Although the meanings of the two legal doctrines do not differ, the fact that the judges did not cite the text recorded in the book, but mentioned instead another text from the other fiqh books, leads me to at least two assumptions. First, the Directorate of Islamic Justice had failed to socialize the book. In fact, almost all the judges interviewed were not familiar with the book. Instead, they often consult a small book which contains a compilation of legal texts from the Qur’n, adth, and fiqh books, which was published a long time before the kompilasi was made,27 and/or copies of earlier judgments dealing with the same case. Second, the judges wanted to maintain their strict adherence to or preference for certain fiqh books. In other words, the judges still wanted to enjoy the freedom to choose the fiqh books of their preference, and not to be tied to those recommended by the Directorate of Islamic Justice. It is of interest to note, however, that as do the judges, the officials of the Directorate of Islamic Justice have also displayed a degree of freedom in using the fiqh texts. In composing the aforementioned book, they frequently used Fiqh al-Sunna by Sayyid Sbiq (1915-2000). Written in the 1940s, this book brought the four Sunnite schools of Islamic law together in a comprehensive analysis of the basis of the Qur’n and Sunna. The book has since been translated into a dozen languages and is used by Muslims throughout the world, including in Indonesia. It was not included in the thirteen fiqh books, but was included among the thirty-eight fiqh books to be analyzed in the making of the kompilasi. This book was the most frequently used reference, according to Ali Yafie, because it cites the Qur’nic texts abundantly and hence is considered to be a more accurate and reliable source for the judicial practices of the religious courts. However, he noted that the privileged position of that

142 modernization, tradition and identity book is being slowly undermined today by Wahbah al-Zuhaylī’s al-Fiq al-Islmiyy wa Adillatuhu. 28 Another reason might be the fact that the book has been chosen as material for the Arabic language test for wouldbe judges, as shall be discussed below. The other references recommended by the Directorate of the Islamic Justice, according to the book, include al-Ashbh wa al-Naz’ir by Jall alDn al-Suy, al-Awl al-Shaiyya by Ysuf Mūs’, Tarshī alMustafidīn by Alw bin Amad Saqqf, al-Fiqh al-Islmiyy wa Adillatuhu by Wahbah al-Zuhaylī, Kifyat al-Akhyr by Taq al-Dīn Abū Bakr Dimshqī, Mabd Awwliya by Abdul mid akm, ‘Uqūd al-Lujayn by al-Nawwī al-Bantanī, and Minhj al-ullb by Zakariya al-Anri. Interestingly, none of these books is included in the group of thirteen recommended fiqh books or in the thirty-eight books chosen to be analysed in the making of the kompilasi. From these findings, it is clear that both the judges and officials of the Ministry of Religious Affairs freely chose fiqh books according to their own preference, and that the freedom to select fiqh books has no connection with their knowledge of what fiqh books were actually recommended to them as references. In fact, even the officials of the Ministry of Religious Affairs who were responsible for the project of the kompilasi, and who most likely were acquainted with or who must have been familiar with the fiqh books recommended for use, did not follow what was specified. Ironically, the reluctance of judges to leave the fiqh books behind is not complemented by accuracy in displaying the page references in the books. I found that the page of Sharqwī’s shiya ‘al al-Tarīr on which the statement “… whoever makes his talak dependent upon an action, the talak occurs with the existence of that action according to the original pronouncement,” occurs, for example, was often noted differently. Some judgments noted that the statement was found on page 302, and others on page 238.29 A number of factors may have contributed to this inaccuracy. Since judgments are often rewritten or retyped by clerks, the latter might have mistyped the page number quoted from the originals, so that it sometimes appears differently. However, this factor seems to be insignificant, as the difference is too great for 302 to become 238 or vice versa. There is also a possibility that the books have been printed several times and the judges therefore refer to different editions when they state the page reference. Their admission that they rarely refer to the original fiqh books, however, makes it dubious that the inaccuracy crept in this way. Another reason may have been because judges often relied only on memory when quoting the legal doctrines, and mentioned the relevant places or pages without checking in the original books.30 The most apparent reason may have been that the judges often only copied the citation of the legal opinions of certain ‘ulam’ from previously

between the kompilasi and the fiqh texts 143 issued judgments. By referring to the earlier judgments, a number of which I found, particularly in the cases mentioned, too often display different page references from the same books for the same quotation, later judges could therefore not avoid making mistakes in their citations. Regardless of these facts, one should ask to what extent the application of the kompilasi has influenced the actual judicial process in the religious courts. IV In the Public Utility In what appears to be the majority of cases, judges in the religious courts have followed the provisions of the kompilasi in deciding the legal cases brought before them. This is apparent in the judgments of the religious court in South Jakarta (No. 19/pdt.p/1997/PAJS), which refused a request for confirmation of marriage (ithbt nik) on the basis of the fact that it was requested by only one party, while the other party (the alleged husband) denied that the marriage had ever taken place. The kompilasi insists that the confirmation of marriage must be requested and agreed upon by a couple for their own welfare. Similarly, the judges of the religious court of Tasikmalaya, by decision No. 11/pdt.p/ 2001/ PA.Tsm, permitted a person to conclude a polygynous marriage only after the petitioner (the husband) could prove the existence of one of the grounds enumerated in the kompilasi, namely that his wife had an incurable disease, and after he produced evidence of his capacity to finance his co-wives plus evidence of his first wife’s consent. In earlier cases, the judges of the religious court of Nganjuk refused to give a husband willing to take a second wife permission, because it was known that the first wife, though having no child at the time the petition was submitted, one of the reasons for his petition for polygynous marriage, was proven to be still medically capable of bearing a child. The admission of the husband that he had had sexual relations with the prospective second wife, which was then also put forward as a reason for the petition, convinced the judges to dismiss the request, arguing that a man could not take another wife to satisfy his extraordinary sexual appetite because this was not mentioned in the kompilasi. 31 However, this does not mean that all provisions in the kompilasi are followed with approval by judges. Some judgments have in fact demonstrated that in a number of cases they have deviated from the kompilasi and referred to the fiqh books instead. They are apparently not worried that their decisions will be overturned by higher courts.32 There are fundamental reasons behind their decisions to abandon the kompilasi. Among these reasons is their intention to uphold public interest. As a matter of fact, many judges argue that deviation from the rules prescribed in the kompilasi is sometimes needed to create public good or to

144 modernization, tradition and identity guarantee the satisfaction of justice for the parties or one of the parties engaged in a case. Therefore, in certain cases a number of rules in the kompilasi are not to be obeyed absolutely. IV.1 ana The rule concerning custody (ana) of a child under age twelve is the best example in this context. Article 105 of the kompilasi grants ana of a child younger than twelve to his or her mother if his or her parents are divorced. Although they agree with this rule and mostly follow it, in practice, judges sometimes conclude that it is not always good to give all mothers this responsibility without due consideration; a small number of mothers of bad character, such as those addicted to drugs or those planning to marry another man, could be considered inappropriate to this task, and hence could be deprived of the responsibility. As the choice of giving the right of ana to one of the divorced parties aims to ensure the welfare of the children, judges maintain that such a rule is not always to be followed and can be ignored for some reasons, such as those mentioned above. Accordingly, in some cases judges have decided to grant the rights to the father.33 The religious court of Bogor once ordered a mother to be deprived of the right of ana because it considered her incapable of taking care of her children, for the reason that she planned to marry again soon after she divorced her first husband. The court based its decision on the fiqh doctrine, stipulating that one of the qualifications for a mother to be given the right of ana is that she has no plans to marry again soon and that she has iffah (full of love and care). The fiqh books cited in this case are Dimasq’s Kifyat al-Akhyr, Vol II, 152,34 and Bjūrī’s shiya Kifyat al-Akhyr, Vol. II, 198. The statement from the former reads as follows: “And to retain charge of a child the guardian must possess certain qualities such as reason, freedom, good religiosity, love, trustworthiness, has achieved a settlement with the child, and has no plans for remarriage. If he or she fails in one of these capacities, he or she loses his or her right to custody.”35 The doctrine from the latter reads as follows: “[The guardian must be] caring and honest and someone failing to pray has no right of custody.”36 In another case, the religious court of Rangkasbitung gave the right of ana of the children younger than twelve to their father on the basis of the consideration that the mother was not pious in her religion and that all the members of her family were non-Muslims. As a basis for its decision, it mentioned the legal doctrine from al-Bjūrī’s Hshiya Kifyat al-Akhyr, Vol. 3, 203 stating that “… there is no right of ana for the mother who is religiously deviant.”37

between the kompilasi and the fiqh texts 145 In principle, the kompilasi stipulates that ana of children should be first passed to women on the mother’s side if the mother is deemed incapable.38 But the fact that familial relationships are so close in Indonesia provides a foundation for some judges to give the right of ana directly to the father, as giving it to, for example, an aunt or grandparent on the mother’s side can mean in effect still giving it to the mother. It seems that such a decision was taken to ensure that the ana of the children, particularly in the case where the mother and her family have become religiously deviant (fsiq) or apostate, lies in the right hands and that the demands of public utility have been satisfied.39 In this respect, it should be mentioned that the kompilasi indeed rules that to guarantee the safety of the children physically and spiritually, a religious court can transfer the right of ana from one nominee to others. Although it is not clear whether the spiritual aspects to be guaranteed also include (Islamic) religion, judges in the religious courts interpret that this is so, and the public utility emphasized by them also has a bearing on religious interests. The same holds true in the case of mumayyiz children (those who have reached maturity or those, according to the kompilasi, aged twelve or older). The kompilasi states they are free to choose one of their parents to be their guardian.40 But some judges have preferred to abandon this rule when they felt that Islam was threatened. In Judgment No. 746/ 1991/PA.MDN, for instance, the religious court of Medan decided to give the ana of the disputants’ two underage children to their mother and agreed with the decision of the other two children, aged twenty and seventeen years, to live with their father who happened to have reverted to his previous religion, Christianity. In this decision, they followed the kompilasi. This judgment elicited criticism from some Islamic legal experts and judges. Satria Effendi, a professor at the State Institute for Islamic Studies (IAIN) in Jakarta, who regularly analysed decisions issued by the religious courts, criticized the judges who handed down the judgment for having not been circumspect enough of the possibility that the father may have harbored bad intentions to influence his two older children. He argued that under such conditions, the children should not to be given their right to choose freely with whom they will live. Judges must choose for them who is the best guardian in terms of their (Islamic) religiosity. He went on to say that the majority of ‘ulam’ including the Shfi‘te agreed that such a condition robs people of the right of ana of their children. Therefore, if in a Muslim family a spouse commits apostasy and this results in a divorce, the ana of their children must automatically be given to the party who is still Muslim.41 As the basis for this he referred to the opinions of the majority of classical ‘ulam’, including the Shfi‘tes, who hold that being Muslim is one of the abso

146 modernization, tradition and identity lute qualifications for a person to be a guardian; non-Muslims or apostates will automatically lose their rights of custody.42 IV.2 Ithbt al-Nikh The rule of ithbt nik in the kompilasi is another example which has sometimes been ignored by judges from this perspective. The kompilasi rules that the ithbt nik can only be obtained by couples in unregistered marriages if a number of conditions are met, one of which is that their marriage had to have been concluded before the passing of the Marriage Law in 1974. However, it often happens that couples coming to the courts reported they had been married after 1974, but wanted to have their marriages legally registered through the procedure of ithbt nik. If the judges follow the provision of the kompilasi strictly, these marriages cannot be registered. Several times, though, the religious court in East Jakarta complied with their demands, and by so doing ignored and deviated from the kompilasi. The judges announced that their decisions were based on an attempt to guarantee the virtue of the couples. Specifically, the judges mentioned the fact that the applicants had one or more children and therefore supported the applicants in their decision to register their marriages. “Law is made to endow the people with virtue. If the law made fails to bestow decency on the people, then we should ignore it and create a new one,” argued the director of the court.43 In such cases, judges attempt to provide a legal basis for their decisions by exploring the legal doctrines prescribed in the fiqh books. The source most often cited is Ba’alaw’s Bughyat al-Mustarshidn. It contains a legal doctrine which states “if there is an admission of one party, a wife, to be married to a man (her husband), or of a husband to be married to a woman (his wife), and they have successfully presented evidence of the fulfillment of the religious conditions of their marriage, these could be taken as the proof of the marriage between the couple.”44 As the citation is seen as insufficient to support their need to deviate from the kompilasi, they insist on an Islamic legal principle which states that “the rule or the law is applied and ignored in accordance with its reason,” in order to confirm that what they did is in accordance with true Islamic legal procedure. IV.3 Age of Marriage Another example is the rule concerning the age of marriage for girls and boys. The kompilasi (Art. 15) and the Marriage Law (Art. 7) both stipulate that girls and boys can enter into marital life if they have attained the age of sixteen years (girls) or nineteen years (boys). Broadly speaking, judges agree with the rule, but for a number of reasons they occasionally ignore

between the kompilasi and the fiqh texts 147 it and give permission to those under the minimum statutory age to marry. It is true that the Law allows the dispensation for marriage to be given to those under the required ages.45 Yet the fact that, although the kompilasi does not confirm it, judges still grant it purely on the consideration that the boys and or the girls have met the qualifications legitimized in the fiqh books, is unequivocal proof that judges are too free in applying the rule of dispensation and have preferred the provisions of the fiqh books to those ruled in the kompilasi. The reasons for such a case are when the parents of a girl or a boy under the ages of sixteen and nineteen respectively consider that the couple have been intimate with each other to the point where it is feared that pre-marital intercourse has occurred between them. Alternatively, a parent may argue that they are already old enough, the couple is already sufficiently mature and they wish to see their child married, and will not brook the refusal of the registry officials to marry their daughter or son. As a result, they bring the case to the court, requesting formal permission to marry their child. After hearing and considering the reasons and the situation of both the girl and the boy, which may be, for example, that the girl has reached maturity, and this is indicated by the fact that she is menstruating, a number of judges may find that they should approve the request and issue a decision stating that the girl or the boy can be officially married with her boyfriend or his girlfriend and therefore direct the official registrar of the place of origin of the girl or the boy to marry them.46 To support their decisions, judges pointed out the legal doctrine which states that “the claim of a girl that she has reached her maturity may be accepted because she has experienced menstruation,”47 presented in alDimyt’s I‘nat al-libīn, vol. 11, 314; and/or the legal doctrine that states “the guardian of a boy may marry him if he sees in it something beneficial and good,”48 presented in al-Muhadhdhab, vol. 11, 40. To strengthen their decisions, they refer to an Islamic legal maxim which states that “avoiding deficiency must be prioritized over the bringing of advantages.”49 In doing so, they have tried to show that marriage at ages younger than those specified in the kompilasi is more appropriate as it will prevent negative consequences. From these examples, we can see how cultural assumptions, legal approaches, and substantive law are all deeply interlinked. Therefore, it appears that judges often do not decide cases in accordance with the dictum of the law, but because the social utility demands this to be so. In Islamic law, judges frequently encounter the concepts of istisn and istila, forms of legal reasoning by means of analogy. These concepts incorporate the idea that analogies may be described with a clear eye to the social well-being at large rather than to a strict set of logically required results.50 Nonetheless, although we have already seen a num

148 modernization, tradition and identity ber of cases in which legal presumptions are really little more than the judicial recognition of local assumptions, we observe that, through their judgments, judges always need to demonstrate that they have not deviated from the Qur’n and other sources of Islamic law. They are convinced that the legal doctrines from the classical texts constitute the best sources for their judgments when they thought the strict application of the new code of law or the kompilasi would cause harm and prevent serving the public good. These three examples indicate that the deliberate ignoring of the kompilasi by judges and their continuing reliance on the fiqh books is because the kompilasi is casuistically perceived as an inappropriate text to be followed. V Against the Deviation of the Kompilasi from the Fiqh Texts In other cases, judges reject the rules in the kompilasi because they claim that in some cases they have deviated too far from the classical fiqh doctrines. In cases of inheritance, for instance, they often abandon its provisions, which happen to be currently hotly debated by Muslim scholars and judges themselves, including the rule of representation of heirs. One judge I interviewed argued: “If I faced a case of inheritance related to the rule of representation of heirs, I would not follow the rule in the kompilasi, as I do not agree with it.”51 Another judge said, I shall solve the problem involving representative heirs as regulated in the kompilasi, but in part. I shall not acquiesce in the rule of limitation which states that the representative’s portion should not succeed the portion of the heirs whose legal entitlement to the estate is equal to the represented heirs, because I do not agree with the additional clause on such a limitation.52 Indeed, a number of judges have disagreed with the application of the principle of representation of heirs to deal with the problem of the inheritance of grandchildren. They have maintained that the problem of grandchildren must be solved by the application of the concept of wiya wjiba in force in Egypt. They argue representation means that one takes the whole other’s position. They realize that once such a ruling is applied, injustice will be an inevitable consequence, and they are aware that the limitation of the portion of the representative heirs was to anticipate and prevent the injustice. Because of this, the kompilasi is simultaneously accused of not yet being in state to apply the full concept of the representation of heirs. Hence, they have proposed that the kompilasi apply the institution of wiya wjiba. One of the judges even criticized

between the kompilasi and the fiqh texts 149 Hazairin, who is considered to be the first proponents of this concept. He said that Hazairin did not fully comprehend the Islamic system of inheritance: “Hazairin was not a professor of Islamic law but of adat law. His knowledge about Islam was so restricted he was inadequately equipped to undertake ijtihd in this issue.”53 Other judges who have agreed with the application of the principle maintain that the problem of grandchildren is better solved by resorting to the concept of representation of heirs. They offer a number of reasons for this; the principle of representation of heirs has its Islamic rationale in the Qur’n, that is, in the concept of mawl, as developed by Hazairin, while the concept of wiya is abrogated by the Qur’nic verse. Another reason is that, they claim, a grandchild constitutes a close relative of the grandparent (praepositus) and has a genetic relationship with him. Hence, the term ‘representation of heirs’ is far more appropriate to such a relationship than is the term ‘wiya wjiba’. Arguing that the wiya wjiba could be applied only to relatives with no genetic relationship, the inheritance of grandchildren who do have a genetic relationship is not to be solved by the institution of wiya wjiba, but by the principle of representation of heirs: “If we utilize wiya wjiba in this case, we seem to be excluding the grandchildren from the family circle and positioning them as outsiders.”54 However, they have a different view of the limitation of the portion of the substitutive heirs. Some said that this has been very just. They argue that unless it is limited, the portion of the daughters of the deceased would be less than those of the grandchildren, and this would be unfair. They believe that justice must be administered equally to all heirs and not to some at the expense of others. So, the limitation is to meet another principle, that of general justice, rather than general equity among the heirs. Some judges have said that it has been more than enough for the grandchildren to be allotted such a limited portion, at least the same share as the other heirs whose positions are equal to the substituted heirs: Under such a rule, it has been more than enough for the grandchildren who are, according to the classical Islamic rule of inheritance, basically excluded from the share, to receive the same as or a lesser portion than that of their aunts. Compared to the portion to which they would be entitled in their own position as grandchildren (should there be only aunt (s) or daughters of the deceased), the portion is still bigger.55 Some judges have maintained that representation of heirs can be applied, but without any limitation on the portion of the substitutive heirs and hence intimating they consider the limitation a deviation from